McBRIDE v WALTON

(1) (by the Court): In a decision limited to a point of law the Court of Appeal was not entitled to reach its own conclusion on the facts but could intervene if, by comparison of the primary facts found and the ultimate conclusion it was demonstrated that the Tribunal had applied an incorrect statutory test.

Hope v The Council of the City of Bathurst (1980) 144 CLR 1; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) applied;

(2) (per Kirby P). In determining whether it was proved that a practitioner was "not of good character" it was relevant to consider non professional conduct insofar as it impinged upon the practitioner's functions and upon the reputation of the profession for high standards of its members.

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Ex parte Tziniolis; Re the Medical Practitioners Act (1967) 84 WN (NSW) (Pt2) 275 (CA) applied;

(3) (by Handley and Powell JJA: Kirby P dissenting): By the proper statutory test, the dishonest reporting of an animal experiment on a suspected teratogen in animals established that the practitioner, even if otherwise of good character and reputation, was "not of good character" in respect of his practice of medicine and so not entitled to remain on the Register. It was open to the Tribunal to so decide and the Court could not disturb that decision for error of law;

(4) Accordingly, by majority, the appeal by the practitioner should, on this ground, be dismissed;

ADMINISTRATIVE LAW - Medical Tribunal - disciplinary proceedings - procedural fairness - charge that medical practitioner "not of good character" - charges particularised

• necessity to remain within particularised charges - reliance by Tribunal upon finding and conclusions outside particulars - whether appellant established procedural unfairness - whether any such unfairness required intervention of appellate court - whether waived by concession or submission for appellate during hearing - whether error of law - held:

(1) (by the Court): In an appeal limited to errors in point of law, a departure from the tules of procedural fairness constitutes an error of law.

Escobar v Spindaleri and Anor (1986) 7 NSWLR 51 (CA) applied;

(2) (by Kirby P and Handley JA): Reliance by a disciplinary tribunal upon suggested dishonesty outside particulars, including in conduct before tribunal amounts to procedural unfairness. Such considerations, if to be relied upon, must be charged and particularised.

Smith v New South Wales Bar Association (1992) 176 CLR 256 applied;

(3) (by Handley and Powell JJA; Kirby P dissenting): Any departure from procedural fairness did not require in this case disturbance of the order of the Tribunal removing the practitioner's name from the register.

MEDICAL PRACTITIONERS - professional misconduct - want of good character - appropriate order - single case of professional misconduct found - finding that practitioner once left patient without adequate arrangements - finding that practitioner deliberately distorted report of animal experiment designed to test alleged teratogenetic qualities of drug during pregnancy - Tribunal finds most charges of "scientific fraud" not proved - upholds complaint of single misreported experiment and subsequent misleading efforts to explain and defend the same - orders that practitioner be reprimanded for professional misconduct - further orders that name be removed from the Medical Register on the ground of want of good character based upon finding of dishonest report of medical experiment - on appeal against the order of deregistration - held: (by Handley and Powell JJA; Kirby P dissenting): No error was shown in the order for removal of the practitioner's name from the register - such order was appropriate, if not inevitable, in the light of the finding of want of good character.

Gonsai v General Medical Council, (Privy Council), unreported, 1 December 1992; The Law Society of New South Wales v Bannister (Court of Appeal (NSW) unreported 27 August 1993) applied.

Medical Practitioners Act 1937, s15, s27, s28, and s32U. Medical Practice Act 1992, s13, s39, s61, s62, s64, s90, s91, Schedule 5 CL11.

3. Direct that the Registrar relist the cross appeal with expedition.

Kirby P Before December 1987, Dr William McBride, an obstetrician and gynaecologist of Sydney, was one of Australia's most famous medical practitioners.

Much of his fame could be traced to his perceptive recognition, in 1961, of a connection between birth defects in neonates and the drug Thalidomide, prescribed as treatment for pregnant women. Following his clinical observations, Dr McBride had corresponded with one of the leading medical journals The Lancet drawing his observations and concern to attention. His letter, and the research of other scientists, led to the withdrawal of Thalidomide from general use because of its teratogenic effects.

For his clinical acuity, action in drawing his findings to world attention and contribution to ie avoidance of further gross defects in neonates, Dr McBride was honoured internationally and in his own country. For example, he received a prestigious award from L' Institut de la Vie, with substantial prize money which he donated to a foundation (Foundation 41). That foundation took its name from the 40 weeks of the typical pregnancy, to which was added the critical first week after delivery.

On 12 December 1987 the Australian Broadcasting Corporation's programme The Science Show published by national radio serious charges of deception in scientific research allegedly involving Dr McBride. Dr McBride denied the

charges. Two things then happened. In June 1988, a committee chaired by the former Chief Justice of Australia, Sir Harry Gibbs, was established by the Foundation to inquire into the alleged deception. In June 1989, Ms Merrilyn Walton, the Director of the Complaints Unit in the New South Wales Department of Health laid complaints with the New South Wales Medical Board against Dr McBride concerning alleged professional misconduct. The complaints were laid pursuant to the Medical Practitioners Act 1938, (the 1938 Act) s28(1)(e) and s28(1)(f). Dr McBride was charged with eight complaints of professional misconduct concerning his alleged unfitness to practise medicine, arising out of the way in which he had dealt with a number of his obstetric patients. These complaints became known as "the obstetric complaints". As well, there were seven complaints charging that Dr McBride was not a person of good character. The supporting particulars referred to a number of complaints concerning alleged "scientific fraud" on Dr McBride's part. That is how those complaints were later known.

The Medical Board referred the complaints to the Medical Tribunal for inquiry and determination pursuant to s31(1)(a) of the 1938 Act. For the purpose of its inquiry the Tribunal was constituted by Wall DCJ (Deputy Chairman) together with Professor GD Tracy, Dr E Sussman and Ms M Brophy.

Preliminary directions hearings were heard in July 1989. The inquiry commenced in November 1989. It concentrated first upon ie obstetric complaints. That part of the inquiry concluded in 1991 after a most exhaustive examination. It reopened in March 1991 to examine the allegations of "scientific fraud". That part of the inquiry concluded in June 1991.

In February 1993 the Tribunal delivered its findings which will be described. There was then a further hearing in May and June 1993 connected with further allegations concerning the alleged scientific fraud. Certain rulings were made by the Tribunal to which it will be necessary to refer.

On 30 July 1993 the Tribunal delivered its decision. By majority (Professor Tracy dissenting) the Tribunal ordered that Dr McBride's name be removed from the Register of medical practitioners. In Professor Tracy's minority opinion the proper order to be made, in view of the findings, was "censure and reprimand". The Tribunal also made certain orders in respect of the costs of the very long proceedings so concluded before it.

Necessarily, the order removing Dr McBride's name from the Register, and the findings made against him by the Tribunal, attracted the most widespread publicity, both in this country and overseas. No stay was granted to prevent the coming into effect of the order of the Tribunal. Accordingly, since July 1993, Dr McBride has been unable to practise his profession.

Dr McBride appealed to this Court. Ms Walton cross appealed against the cost orders which the Tribunal made. By notices of contention, Ms Walton also sought to support the substantive orders of the Tribunal, upon grounds other than those stated in its decision.

As might be expected, with such a prolonged, indeed exhausting, inquiry the record of the Tribunal was daunting. However, substantially (as I shall show) the "obstetric complaints" were determined in Dr McBride's favour. Those determinations were accepted by Ms Walton for the purposes of these proceedings. There was no appeal against them. Substantially, but not wholly, the complaints of "scientific fraud" were also found in Dr McBride's favour - but with an important exception. The decision of the Tribunal, in relation to the obstetric complaints comprises an entire appeal book. It comprises (with

appendixes and a glossary) some 215 pages. The decision of the Tribunal in the "scientific fraud" complaint comprises two appeal books totalling 570 pages. Thus the entire decision, relevant to the appeal and cross appeal, runs for 926 pages. I must pay tribute to the Tribunal for the organisation of such a vast mass of material and for its presentation in an attractive and well ordered way.

Naturally, one embarks upon a review of decisions made in such a major enterprise with a proper sense of diffidence and with due respect for the advantages which the Tribunal had. Those advantages derive from the usual considerations. The Tribunal heard and saw a very large number of witnesses. It had a great deal of time to reflect upon the material placed before it. It was constituted in a way designed by Parliament to reflect legal expertise, medical professional values and community opinion. Insofar as the Tribunal had to reach conclusions upon the application to the facts found of broadly expressed statutory criteria (such as is inherent in a finding that a medical practitioner is "not of good character" or is "unfit to practise"), it is appropriate to show hesitation, especially in such a case, before giving expression to a conclusion that the Tribunal's opinion was wrong. Similarly, where minds might differ (as they did within the Tribunal itself) upon the order which was appropriate to the matters proved and found, it is right that this Court, in an appeal from the Tribunal's order, should show proper respect to an opinion formed by a body which was created by Parliament and had the advantages which I have listed.

This said, the appeal and cross appeal now before the Court must be determined as the Medical Practice Act 1992 (the 1992 Act) provides. Even in such a large enterprise - perhaps especially in litigation so long and complex - mistakes can occur which may attract appellate review. In the review of orders, Parliament has afforded a large facility to this Court to reconsider the correctness of the orders made by the Tribunal. Where the Tribunal itself divided - and a senior and most experienced member of the medical profession dissented - an issue is clearly tendered for decision. It must be faced squarely.

Because of the care with which a very large number of the complaints were disposed of, the matters in contest before this Court are not as substantial as the size of the transcript might otherwise suggest. In fact, as I approach the appeal, there are really only three substantive issues in it, making four to be disposed of when the cross appeal is considered. In shorthand form, the issues to be decided are:

1. Whether upon the primary facts found, the Tribunal erred in law in concluding that it had been proved by Ms Walton that Dr McBride was "not of good character";

2. Whether, in the conduct of its proceedings, and having regard to earlier rulings on the particulars of the complaints which Dr McBride had to meet, the Tribunal erred in law in taking into account matters outside the complaints which Dr McBride was called upon to answer;

3. Whether the Tribunal was wrong in ordering that the name of Dr McBride should be removed from the Medical Register and, if so, whether some other order (eg reprimand) is now appropriate in the circumstances; and

4. Whether, on the cross appeal, the Court should disturb the discretionary orders for costs made by the Tribunal.

Necessarily, to dispose of these points with due economy, I will be obliged to simplify some of the vast mass of material which has been placed before the Court in these proceedings. The task of an appellate court is synthesis and analysis: not the reproduction of large masses of undigested evidence.

As [have stated, the complaints against Dr McBride were made pursuant to the Medical Practitioners' Act 1938. However, on 1 July 1993 the Medical Practice Act 1992 commenced. It was necessary to provide in the latter Act, by transitional provisions, for unconcluded proceedings which had commenced under the former Act. Schedule 5 of the 1992 Act is relevant in this regard. By CL11(1) of that Schedule, the provisions of the 1938 Act continue to apply to, and in respect of, an inquiry commenced under that Act and pending immediately before its repeal. By CL11(2) of Schedule 5, an order or determination resulting from such an inquiry is taken to have been made under the corresponding provisions of the 1992 Act. It has effect accordingly.

The notice of appeal now before this Court was lodged on 20 August 1993. The notice of cross appeal was lodged on 26 August 1993. Thus, both proceedings in the Court were instituted after the commencement of the 1992 Act. It was common ground that the provisions governing the appeal and cross appeal were those in s90(1) of the 1992 Act. By virtue of CL11 of Schedule 5 of that Act, the appeal and cross appeal are taken to have been brought from findings deemed to have been made under s60 of the 1992 Act and from an order taken to have been made under s64 of the 1992 Act.

The appellate provisions of the 1992 Act read, so far as relevant:

"90(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against:

(a) a decision of the Tribunal with respect to a point of law; or

(b) the exercise of any power by the Tribunal under Division 4 (Disciplinary Powers of Committees and Tribunal) of Pt4.

91(1) In determining the appeal, the Supreme Court may:

(b) make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act. "

It is the requirement of s90(1)(a) of the 1992 Act that the appellant must show an error in point of law. See Kirumba v Walton, Court of Appeal (NSW), unreported, 4 October 1990; (1990) NSWJB 132. There was a similar limitation under s32U(1) of the 1938 Act. In Kirumba (at 16) it was pointed out that this provision imported the jurisprudence established in the context of the former appellate provisions of the Compensation Court Act 1984. See eg Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA). That decision made it clear that errors of fact finding, and even perverse or unreasonable findings of fact, cannot, of themselves, constitute errors of law. See ibid, 155. See also Clark v Flanagan (1934) 52 CLR 416, 428.

Since Azzopardi, there have been a number of decisions which have questioned the proposition that "perverse", "irrational" or otherwise unreasonable decisions (eg such that no reasonable and lawful decision may or could be arrived at) do not constitute, or evidence errors of law. Cf Lee Ting Sang v Chung Chi Keung and Anor [1990] 2 AC 374 (PC) 378; [1990] 2 WLR 1173, 1179 applying Edwards v Bairstow [1956] AC 14, (HL), 38f. However, in these proceedings, Dr McBride did not seek leave to reargue Azzopardi which establishes the applicable law in this Court. Instead, he sought to bring himself within that exception to the "perversity rule" which Glass JA acknowledged in Azzopardi (at 156). If it can be shown that the primary facts found by the decision maker are "necessarily within or outside of statutory description" and

yet a contrary decision has been made, the appellate court may intervene to correct the error which is catalogued as one of law. This line of authority is well established in Australia. See eg Hope v The Council of the City of Bathurst (1980) 144 CLR 1, 10 and The Australian Gas Light Co v The Valuer General (1940) 40 SR (NSW) 126 (FC), 138. Invoking these cases, it was said for Dr McBride that the Tribunal's decision that he was "not of good character" was necessarily inconsistent with ie primary facts found by the Tribunal which, for the purposes of the appeal, Dr McBride did not challenge.

The second way in which Dr McBride attacked the decision of the Tribunal arose out of what was claimed to have been a breach of the rules of procedural fairness. Put shortly, it was alleged that the Tribunal, in concluding that Dr McBride was "not of good character', impermissibly had regard to matters which did not form part of the particulars of complaint. It is well established that a breach of the rules of procedural fairness (natural justice) constitutes an error of law. See eg Escobar v Spindaleri and Anor (1986) 7 NSWLR 51 (CA), 60. Dr McBride submitted (but Ms Walton contested) that, in the way the Tribunal had proceeded, it had ignored, or overlooked, earlier procedural rulings made by it excluding from the matters of complaint certain belated particulars upon which Ms Walton had sought to rely. By relying for its decision upon the matters substantially outside those particulars, it was argued for Dr McBride that the Tribunal had fallen into procedural unfairness. It had failed to give him an opportunity adequately to deal with adverse matter relied upon. It had thus had erred in law. Cf Kioa and Ors v West and Anor (1985) 159 CLR 550, 629.

Dr McBride's fall back position invoked s90(1)(b) which was the appeal against the order of deregistration. This did not require proof of an error of law.

In Bannister v Walton, Court of Appeal (NSW), unreported, 4 June 1993; (1993) NSWJB 50, a question arose under the former provisions of s32U(1)(b) of the 1938 Act as to whether the right of appeal against the order of the Tribunal was limited to an appeal against the exercise of the power given to the Tribunal under s32R or extended to questioning the acceptance by the Tribunal of the facts found to have comprised proof of the complaint. This Court accepted, for the purposes of deciding that appeal, that the language of the statutory provisions (not relevantly different) limited the Court to deciding whether in regard to the complaints found proved the order should be set aside or varied. See Priestley JA at 1 and Clarke JA at 1. Mahoney JA remarked (ibid, 63):

"Whether this Court would, in considering the order to be made, act upon a finding of fact which, though wrong, did not disclose error with respect of a point of law is a matter which may require consideration in an appropriate case. I would not differ in substance from the overall findings of fact made by the Tribunal for this purpose. "

In this aspect of the appeal, as in the others, Dr McBride accepted the primary findings of fact made by the Tribunal. He acknowledged that this Court would be bound to give due weight to the Tribunal's decision for reasons already adumbrated. But he submitted that, in reaching its own conclusion on the order(s) proper to the facts found, the Court was entitled, and indeed bound, to give effect to its own view if it were satisfied that, in the evaluation performed by the Tribunal, it had reached an order which, in the circumstances, was wrong.

Finally, in the cross appeal, Ms Walton complained of errors of law in the orders of the power of the Tribunal as to costs. Specifically, she complained of an alleged miscarriage of the Tribunal's discretion in disposing of costs in the way it did. Necessarily, the disposal of costs involves a large measure of

discretion. In such protracted proceedings one would be specially hesitant to intervene on such a point unless an error of power or of principle were clearly shown. But Ms Walton argued that both were demonstrated.

TEN YEAR AUDIT OF OBSTETRIC CASES: SUBSTANTIAL VINDICATION

In order to approach the first case of the appellant, it is necessary to describe how the Tribunal disposed of the many complaints which Ms Walton brought against Dr McBride. As has been stated, nine of the sixteen complaints alleged that Dr McBride had been guilty of professional misconduct in the course of his practice as an obstetrician. Clearly, a positive finding of such professional misconduct would (depending on the gravity) sustain an order of deregistration.

The Tribunal heard the nine obstetrics complaints first in point of time. Of the nine complaints in this class, eight were completely dismissed. One only was found proved in part. The details were as follows:

1. Three complaints (complaints 1, 7 and 8(b)) allege that Dr McBride was guilty of professional misconduct in that his caesarean section rate was "grossly in excess" of that of his professional peers and that there was no clinical justification for caesarean section in 38 individual cases which were particularised. These cases were spread over three hospitals. They related to a period from September 1979 to 1988 when the charges were laid. They thus constituted an audit of more than a decade of Dr McBride's clinical practice. The Tribunal dismissed all of these complaints. It found that not a single one of them was proved. It determined that none of the caesarean sections attacked by Ms Walton's complaints was unjustified. Thus the three complaints within this class (caesarean sections) were dismissed in whole;

2. One complaint (numbered 8(a)) alleged that Dr McBride was guilty of professional misconduct in that he diagnosed placenta praevia in the absence of objective clinical signs of that condition. It was alleged that in eight individual cases the diagnosis found by Dr McBride was not supported by clinical signs. Needless to say, this audit likewise took the Tribunal into a painstaking examination of individual cases over an extended period. The Tribunal found that not a single complaint in this class was proved. It rejected the complaint that Dr McBride had diagnosed placenta praevia without appropriate clinical signs. Complaint 8(a) was dismissed in its entirety; and

3. Five separate cases were then examined in respect of complaints 2 to 6 inclusive concerning Dr McBride's individual management of five of his obstetric patients. In four of the complaints (complaints 2, 3, 4 and 5) none of the particulars of these complaints was found by the Tribunal to be proved. Those complaints were also wholly dismissed. In respect of complaint 6, the Tribunal found that four of the five particulars alleged were not proved. They too were dismissed. However, it found that one of the five particulars alleged was proved. This had charged that Dr McBride had left a hospital without making proper arrangements for the future care of the named patient. To that extent (but to that extent only) the Tribunal determined that complaint number 6 in respect of particular number 5 had been made out. To that extent, Dr McBride was found guilty of professional misconduct.

It is instructive to see the way in which the Tribunal came to its conclusion at the end of this very long decision disposing of all of the obstetric complaints:

"The Tribunal was not able to be comfortably satisfied that the questions that need to be addressed in the qidwai test would have been answered affirmatively on the consensus of the experts' opinion. However, the Tribunal was comfortably

satisfied that on the facts found by it and on the cumulative evidence of the experts which it applied to those facts there was proof of the particulars, proof of a departure from a minimum standard of practice which was reprehensible in the circumstances and constituted professional misconduct within the meaning of s28(1)(d) of the Act.

That said, in the background of the extensive retrospective audit of Dr McBride's practice, spanning ten years at three hospitals, proof of this particular should be viewed as a minor and isolated lapse and out of character with his normal practice. Ordinarily a complaint of this kind, if it were to be brought against the practitioner, would be referred to the Professional Standards Committee for inquiry and determination and not to the Medical Tribunal."

The Tribunal subsequently ordered that Dr McBride be reprimanded in respect of this found professional misconduct. Dr McBride does not dispute that order in this Court.

Let me reflect for a moment upon this outcome. The complaints alleged against Dr McBride in the class of obstetric complaints were not confined to assertions that he had acted unwisely or irregularly. Instead, a most substantial case was mounted against him. It spanned more than a decade of his professional practice. It was a case the hearing of which lasted before the Tribunal from November 1989 to February 1991. It was, as the Tribunal described it, an "extensive retrospective audit". It asserted against Dr McBride dishonesty both in the conduct of caesarean sections and in the diagnosis of placenta praevia. Yet all of these complaints (save one case of leaving a hospital without proper arrangements for a patient) was dismissed. Substantial allegations, involving a sustained and prolonged attack on Dr McBride's credit, professional skill and attention were all dismissed, except for a single particular which would not ordinarily have justified invoking the jurisdiction of the Tribunal at all.

One is left with a number of questions: How could such a welter of misconceived charges ever have been brought? Is the correct test being applied to the prosecution of such charges by the Complaints Unit of the Department of Health? One might expect, in such an extensive audit, that some charges at least might not be made out. But to succeed in only one particular of one case of so many complaints (and then a minor one) presented against Dr McBride necessarily raises a serious question concerning the judgment of those who brought the complaints.

It is clear enough that the Tribunal had a similar reaction. In part, it appears to have visited its reaction in its cost orders. But the important point to be kept in mind is that, in his actual daily work as a medical practitioner (for which he requires registration to protect the public) as distinct from in his work as a research scientist (for which he does not), Dr McBride came through his scouring test before the Tribunal almost wholly unblemished.

There would be few medical, dental, legal or other professionals who, submitted to an intensive audit of more than a decade, would not emerge with at least the single blemish which the Tribunal found against Dr McBride and thought sufficiently dealt with by a reprimand. So far as this lengthy, energetic, gruelling examination of his professional practice is concerned, Dr McBride was substantially vindicated. Loyalty and respect on the part of his patients was manifest in the evidence. And it should not be forgotten that the testimony in the obstetrics complaints must be taken to be the worst cases which the Complaints Unit could find for the decade prior to the initiation of the proceedings in the

Tribunal. The complaints would thus involve no cross section of the many other patients who did not complaint and who, inferentially, accorded Dr McBride their respect and professional trust.

DISHONESTY IN SCIENTIFIC EXPERIMENTS: FINDING OF WANT OF "GOOD CHARACTER"

But the most important feature of this finding of the Tribunal is as it throws light upon the "character" of Dr McBride and his fitness to continue in his practice on the Medical Register of this State. Despite the sustained examination to which his practice was submitted, only one relatively minor particular fault over more than ten years was proved. The assertions of repeated dishonest and unprofessional conduct were found unproved and dismissed. In so far as the obstetrics complaints therefore cast light upon the character of Dr McBride, his character emerges unscathed: a hardworking, skilled obstetrician, accurate and proper in diagnosis and honest with his patients and his colleagues.

It will be recalled that the remaining seven complaints brought against Dr McBride allege that he was "not of good character". These complaints were numbers 9 to 15 inclusive in the complaint lodged by Ms Walton.

The complaint was framed in terms of s28(1) of the 1938 Act which contained as the last paragraph of the subsection a reference to the character of the practitioner. It is worth noting the context:

"28(1) A complaint may be made that a registered medical practitioner:

(a) has been convicted in New South Wales of an offence;

(b) has been convicted elsewhere than in New South Wales....;

(c) has been habitually drunk or addicted to any deleterious drug;

(e) does not have sufficient physical and mental capacity to practise medicine; or

The complaints said to support the want of good character on the part of Dr McBride were not directly related, as such, to the performance of his duties as a medical practitioner. Those complaints were confined to the claims of professional misconduct under para(d), disposed of, as above. Instead, the complaints of want of good character related to what has been described as the case of "scientific fraud" brought against Dr McBride. This concerned not Dr McBride's direct dealings with his patients, as an obstetrician and gynaecologist, but scientific research which he performed in conjunction with Foundation 41. The hearing of the inquiry by the Tribunal into these complaints lasted from February to July 1991. To some extent, the Tribunal's scrutiny of these latter complaints overlapped the terms of reference of the committee appointed by the Board of Foundation 41 chaired by Sir Harry Gibbs. However, this Court's attention in the appeal is necessarily confined, as the legislation requires, to the findings of the Tribunal.

The same interests which that had alerted Dr McBride to the dangers of Thalidomide continued to motive his scientific research and to affect the research of Foundation 41. This was a concern about the possible teratogenicity of other drugs upon the human foetus, specifically a drug known as Debendox and another, Scopolamine Hydrobromide.

The charges in the latter class were of substantial, repeated, multitudinous and deliberate scientific fraud on the part of Dr McBride. They were constituted by seven complaints being complaints 9 to 15 which Dr McBride was called upon to answer before the Tribunal.

It is unnecessary, in the way in which the Tribunal determined most of these complaints, to go through them in the detail which was required of the Tribunal to reach its conclusion dismissing most of them. It is possible to simplify the overall picture as follows:

1. Complaints 11 to 15 asserted that Dr McBride had published or caused to be published false and misleading statements concerning an experiment in 1979 involving the administration to ten experimental rabbits of the drug Debendox. It was said that these false and misleading statements were given in publications and in the course of Dr McBride's giving evidence in litigation in the United States of America. In this way, two categories of complaints emerged, namely those dealing with the Debendox experiment, as such, and those dealing with the United States litigation. Ms Walton set out to prove that the statements made by Dr McBride were false in that the experiment recounted by him had never taken place and was a complete fabrication (complaints 11, 12, 13(a), 14 and 15(a)). The Tribunal dismissed that complaint finding it not to be proved. There has been no appeal. There were, however, a subsidiary complaints (complaints 13(b) and 15(b)) which alleged that some of Dr McBride's evidence in the United States litigation was false in that it was inconsistent, in some respects, with the evidence given by him in other United States litigation. The Tribunal found that this allegation was proved. It found that the false statements were attributable either to Dr McBride's reckless indifference or inexcusable carelessness on his part. Nevertheless, the Tribunal was not convinced that the proof of these allegations amounted to proof that Dr McBride was "not of good character" as provided in the Act in the context of his fitness to practise medicine;

2. 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.

"., Dr McBride deliberately made false statements in the Article in relation to the experimental data, deliberately misreported the method of an experiment and included spurious data Moreover, the Tribunal found that the explanation for this conduct was his desire to strengthen the appearance of the experiment as a properly designed experiment in order to enhance the publishability of the Article and hence provide support for his hypothesis that hyoscine may be a teratogen.

In relation to the preparation and publication of the Note the Tribunal has found that Dr McBride caused to be published in the Note statements which were misleading and which he knew were misleading. The Tribunal has found that the explanation for this conduct is that he did not wish to make public that members of the Research Advisory Committee of Foundation 41 had considered a complaint by the co authors of the Article that the description of the rabbit experiments and experimental data published in the Article did not correspond with their recollection of the experiments nor with the contemporaneous records of the experiments and that as a result the Committee had directed that there be a retraction of the relevant published material. The publication of the Note is significant because it is the first public response by Dr McBride to the allegations of scientific fraud...

The Tribunal is required to consider these findings to determine whether they establish that Dr McBride is not of good character in the context of fitness to practice medicine."

I pause again to reflect upon the point reached at this stage of the Tribunal's findings. After a most painstaking inquiry into the detail of Dr McBride's scientific work, experimentation, reporting and testimony, the Tribunal reached a number of important conclusions, relevant to the only ground for relief upon which the complaints of "scientific fraud" were tendered, viz that Dr McBride was "not of good character" in the context of the practice of medicine:

1. As to the suggested scientific fraud in respect of experiments on hen eggs, no dishonesty was found. Any errors of reporting were attributed to innocent mistake. This was important because a proved pattern or multitudinous series of differing acts of dishonesty in different experiments could throw a different light upon the "character" of Dr McBride than more limited instances confined to a particular class or case;

2. In respect of the Debendox experiment with rabbits, the Tribunal found that fraud was not proved. Specifically, it found that Ms Walton had failed to prove that the experiment did not take place, as was her assertion. Accordingly, on this head of complaint, as well, no dishonesty on the part of Dr McBride was found proved;

3. In respect of the complaints concerning the evidence given by Dr McBride in litigation in the United States of America, the Tribunal did find that some of Dr McBride's evidence was false. But it expressly attributed that false evidence to inexcusable negligence or reckless indifference to accuracy. Thus his conduct was properly characterised as culpably negligent in respect of the honest reporting of his scientific research rather than dishonest as such. Thus, on this head of complaint too, to the extent that dishonesty in scientific research, particularly repeated and in multitudinous instances would suggest an affirmative decision of "bad character", the decision of the Tribunal in respect of the evidence in the United States litigation did not tend to suggest that "bad character" was proved. Scientists performing and reporting research work can be

culpably negligent without demonstrating such a want of good character as to require, if they be medical practitioners, that they be removed from the Medical Register; and

4. That leaves Dr McBride's reporting of his Hyoscine experiment with rabbits. It is here that there is an undoubted, and unchallenged, finding of dishonesty. There either were six or eight rabbits. The co researchers and the contemporaneous documents convinced the Tribunal that there were six. There either were two or one instances of malformed litters. The same evidence convinced the Tribunal that there was but one. Thus the Tribunal's findings must be approached on the footing that it was decided that the Article published by Dr McBride was intentionally misleading and false insofar as it related to the number of rabbits and malformed litters and to the controls which were put in place to ensure the scientific accuracy of the outcome. But these were the only aspects of the report which were found to be intentionally and deliberately misleading. Other aspects of the Article were found by the Tribunal to be misleading but short of the intentional desire to distort the true conduct and outcome of the experiment. Thus it was found that statements in the Article were misleading:

(i) In respect of the statement that the foetuses were sectioned - but this was found to be due to reckless indifference as to the truth rather than deliberate falsehood;

(ii) In respect of the statement that the rabbits had received intramuscular injections - but this was found to have been unintentional;

(iii) In respect of the statement that six of the injected rabbits became pregnant

• no finding was made as to Dr McBride's intention in this regard;

(iv) In respect of the statements that the rabbits were dosed by injection on particular days, that the doses were administered at 12 hourly intervals and as to the timing of the deaths of two rabbits - and this also was due to reckless indifference as to the truth; and

(v) In respect of the statement as to the doses administered orally to three rabbits and the weight of one rabbit - and this was either intentional or due to reckless indifference.

The Note was not found by the Tribunal to have been deliberately dishonest. But it was found that it was misleading in implying that there were contemporaneous controls upon the rabbit experiment and in omitting a candid acknowledgment that a significant reason for repetition of the experiment was that the data did not correspond in significant respects with the recollection of the named co authors of the Article or the contemporaneous records in the possession of Foundation 41 (and hence of Dr McBride).

A review of all of the foregoing indicates that, for the purpose of testing the Tribunal's ultimate conclusion, that Dr McBride was "not of good character', as charged, it is necessary for this Court to put out of consideration those matters in respect of which the Tribunal found no dishonesty had been proved (the egg experiments and the Debendox experiments) and that matter of complaint in respect of which, although palpable negligence was found, the Tribunal was not convinced that Ms Walton had proved an absence of good character (the evidence in the United States litigation). Thus, for the consideration of Dr McBride's first case, the matter comes down to whether Dr McBride's reporting of the Hyoscine experiments with six rabbits (stated first in the Article and misleadingly affirmed in a later Note) amounted to such established dishonesty on his part as to

demonstrate that he was "not of good character" as provided in the 1938 Act, in a respect relevant to his practise of medicine.

For Ms Walton this was a matter committed by law to the Tribunal. It was open to the Tribunal, applying the correct statutory test, to infer that even a single case of dishonesty in medically related research amounted to proof of a want of good character and to warrant the order of deregistration. The mere fact that this Court might not agree with the Tribunal was beside the point. The statute confined intervention to correcting errors of law. Even a perverse finding would be immune from correction by the Court. The instant decision, far from being perverse, was the result of a painstaking consideration of all of the evidence by the Tribunal. Dishonesty proved in such a formerly distinguished medical practitioner and scientist showed a grievous flaw of character which required his removal from medical practice. There would be damage to the high reputation of the medical profession, and to the public's confidence in that professional's honesty and integrity, if such a person were to continue to practise after such a finding. The case was special and particular. But not unique. See eg Alsabti v Board of Registration in Medicine 536 NE 2d 357 (Mass) (1989) - a case of removal of a physician's registration for proved plagiarism of medical Articles.

For Dr McBride, the finding of want of good character was based upon the narrow, isolated, particular matter only in respect of which he was found to have published intentionally misleading scientific data. This demonstrated a failure on the part of the Tribunal to apply the correct standard as to what "good character" meant in the context of the legislation. This was not a "perverse" finding only (although it was that). It was also a conclusion wrong in law when the primary findings were fully accepted and then submitted to the application of the statutory language, properly understood.

"MEANING OF "NOT OF GOOD CHARACTER" IN THE CONTEXT OF THE ACT

The reference to the "character" of a medical practitioner appears twice in the 1938 Act. By s15(1)(c) it is a prerequisite to the entitlement to registration that the applicant should have satisfied the Medical Board that "he [or she] is of good character". By s28(1)(f) it may be the subject of a complaint against a medical practitioner who is registered that the practitioner "is not of good character'. What does "character" mean in this context?

The dictionaries suggest that it means "the aggregate of qualities which distinguish one person from another', the "moral constitution" of a person, that person's "reputation" and "good repute". The etymological origins of the word, from the Greek word for an instrument for engraving, suggests that now somewhat dated view of complex psychological phenomena, viz that persons may be readily catalogued as being either of "good character" or of "bad character'. Certainly, the classifications are well known to the law which usually finds such simplistic notions of human and other classification congenial. Poets have said directly what some lawyers, at least, have kept to themselves about the notion that people have a "character" which is ascertainable for legal or like purposes. Thus, Hilaire Belloc in his poem The Statesman, wrote of "character" and the hypocrisy and vacuity that can often accompany talk of a man's "character":

He therefore was at strenuous pains To atrophy his puny brains

And registered success in this Beyond the dreams of avarice,

Till, when he had at last become Blind, paralytic, deaf and dumb, Insensible and cretinous

A history of the response of the law to the application to prove that a person is of "bad character" for the purpose of the law of slander is given by Lord Denning in his speech in Plato Films Ltd and Ors v Speidel [1961] AC 1090 (HL), 1133 at 1134ff. The need for the classification has appeared in many areas of the law. It has tended to be most important in the criminal law. See eg Kesiwe Malindi v The Queen [1967] 1 AC 439 (PC), 451.

The following general propositions can be offered as relevant to the meaning of the phrase "is not of good character" as it appears in s28(1)(f) of the 1938 Act under which Dr McBride was charged and for which it was ordered that his name be removed from the Medical Register:

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.

The relevant function of the Tribunal (as of this Court) is to protect the public from medical practitioners whose continued practice may cause harm to the public. It is not, as such, to uphold human morality or academic integrity and honesty in research. Ordinarily at least, protection in respect of academic integrity can be left to universities, to research institutes, to funding agencies, to academic journals to the scientific community and even to the general news media. The phrase "not of good character" is therefore not at large. It must be construed as limited to the context in which it appears. To give it too wide an ambit would be to ignore that context and to impose upon the Tribunal obligations different from those for which it was created by Parliament and for which its procedures and membership would be ill suited;

Even within this narrower conception of "good character", it is important to remember that no person's character is entirely flawless. Thus, it is not every flaw of character, even having relevance to a medical practitioner's entitlement to practise the profession of medicine in relation to the public, which will warrant a conclusion that he or she is "not of good character" within the meaning of the phrase in s28(1)(f) of the 1938 Act. Necessarily, given the context and the drastic consequences which may ensue if a want of good character is proved, something more grave and serious and of relevance to capacity to practise medicine must be shown. Some blemishes upon an otherwise good character will be apt for a response lower down the hierarchy of responses or outside the formal statutory scheme altogether: such as the wise counselling and peer pressure to which every professional person is subject throughout life;

A single act, or connected series of acts, even if pertinent to medical practice, may not amount to showing that a registered practitioner is "not of good character". Proof that a person cheated once does not demonstrate that he or she s "a cheat", in the sense of being engraved with the "character" of a cheat. The fact that a person is once shown to have engaged in dishonest reporting of a research project by no means demonstrates that he is "a fraud", in the sense of displaying an habitual propensity to dishonesty. To hold otherwise would be to compound 19th century notions of psychology and to inflate the balloon of "good conduct" beyond its function in s28(i)(f) of the 1938 Act;

It is established by the cases that wrong doing by a practitioner, extraneous to his or her profession, may be relevant to demonstrating a want of good character but only if the conduct in question showed what can be taken to be a characteristic of the individual, ie not an isolated lapse which is uncharacteristic to the practitioner or irrelevant to the practice of the profession. In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Mr Ziems, a barrister, convicted and sentenced to imprisonment for manslaughter involving the death of a motor cyclist, struck by the barrister's car on the wrong side of the road when Mr Ziems was alleged to have been intoxicated, won his appeal in the High Court. It was held by the majority of that Court that the conviction for manslaughter was not such as to require the permanent removal of Mr Ziems' name from the roll of barristers but only his suspension during the continuance of his imprisonment. The Court emphasised the very different approach to be taken in cases where what was alleged was not professional misconduct but personal misconduct or want of character outside the strictly professionally context. See ibid, 290. The relevance of connection and significance for professional functions was stressed. See ibid, 299. A moment's reflection will show why this must be so. It is not the function of professional disciplinary bodies to assume wider obligations or the duties of punishing a

practitioner. Their sole function is to protect the public in the context where they have legitimacy and expertise, namely professional practice. Kirumba (above), 6;

Where it is complained that the medical practitioner is "not of good character" and it is established that, in a particular act or connected series of actions, the practitioner's behaviour falls below the standards usually required and expected relevant to the practice of medicine, a question will be posed as to whether that behaviour was abhorrent, exceptional and such as is not likely to interfere in the function of the practitioner as such (as was held in Ziems) or whether it betokens some more serious flaw of "character" attracting an order affecting the practitioner's practice (as in In re Davis (1947) 75 CLR 409, 417 (a barrister who, on admission, failed to disclose a conviction for breaking, entering and stealing either to the court or to his referees)) and Ex parte Tziniolis; Re the Medical Practitioners Act (1967) 84 WN (NSW) (Pt2) 275 (CA) (an applicant for registration who committed perjury and intimidation of a discreditable kind)). In considering an alleged lack of good character it will be relevant for the Tribunal to seek to catalogue the pertinent wrong proved, either as an isolated incident or episode or as an indication of some deeper underlying quality which shows a "character" demonstrating defects relevant to medical practice. Thus, the Tribunal will ask itself whether the errors which it has found are simply errors of judgment in a particular case or demonstrate fault of "character". It will often be relevant in this connection to consider the motivation of the practitioner. See Ex parte Tziniolos (above), 301. Where that motivation is greed or some corrupt purpose, such a finding will typically carry more weight than a conclusion that some other motivation, normally irrelevant to professional practice, affected the particular conduct impugned;

Once the impugned conduct is properly found and classified, it is then necessary for it to be seen in the wider context of the medical practitioner's "character", including evidence of "good character" as demonstrated by his or her service in the profession and the community. Relevant here will be any evidence provided as to the practitioner's good fame and character in the eyes of patients, fellow practitioners and other citizens. Such evidence may help to show the underlying qualities of character of the practitioner in question. They may assist in the evaluation of the overall character of the practitioner. They may lead the Tribunal to the view that the particular conduct impugned and proved is to be regarded as exceptional and such as will not require the ultimate conclusion that the practitioner is "not of good character" or, if that conclusion is found, that some order short of removal from practice is appropriate to the case;

The burden of establishing that a medical practitioner is "not of good character" rests upon the complainant. Having regard to the serious consequences which flow from the result of an affirmative finding, the complainant is required to prove the case to a very high level of satisfaction. See Briginshaw v Briginshaw and Anor (1938) 60 CLR 336, 361; Kirumba, above, 15. There is no shifting legal onus in the Tribunal. The burden of proof remains throughout upon the complainant. Of course, if the practitioner raises a particular issue of mitigation (eg that he or she has reformed and accepted the error of past ways) the evidentiary onus will rest upon the practitioner in that regard. In the present case, there was no such issue. The burden was thus borne, from first to last, by Ms Walton; and

Especially where, as here, the inquiry spanned a very long period of the practitioner's practice of his profession, it is appropriate to remind oneself again of the "principal and ultimate issue of public interest" which is "the present

fitness to practise". See Herron v McGregor and Ors (1986) 6 NSWLR 246 (CA), 258 (McHugh JA). This was the question which was before the Tribunal. In the event that the Tribunal's order is disturbed and this Court is obliged or permitted to reach its own conclusion, it is present fitness which is the test to be applied. That fitness is fitness to practise as a registered medical practitioner. It is not the fitness of Dr McBride to conduct medical research or teratogenic experiments. It is not his fitness to write articles for journals or to pretend to academic excellence. The Tribunal and this Court are administering statutes of the Parliament of New South Wales concerned with the registration of medical practitioners thereby warranted as such to the general public. Nothing more.

Given that the Act posits the existence of an engraved character which must either be classified as "good" (warranting registration and resisting removal) or "not good" (preventing registration and warranting an order following a complaint found proved) it is essential to start the search for Dr McBride's relevant "character", at the time the order was made, in a way somewhat different to that adopted by the Tribunal.

This is to consider the whole character of the man, derived from more than the subject of the inquiry by the Tribunal and the narrow focus it is apt to cast upon the "character" of its subject. There is a danger, in the procedures of the Tribunal, when it goes beyond the objective and empirical matters raised by the other paragraphs of s28(1) of the Act and embarks upon para(f), that it may distort the significance for the "character" of the subject, of the particular matters proved.

Dr McBride was, by every account, until the matters the subject of the adverse determinations of the Tribunal (the Hyoscine experiments on rabbits and their reporting) entitled to honour and respect as a most distinguished citizen, medical researcher and practitioner of obstetrics and gynaecology.

He was at the time of the Tribunal's decision sixty seven years of age. He is therefore now sixty eight years old. He is reaching the end of what the Tribunal itself described as "a long and distinguished professional career as a leading senior consultant obstetrician and gynaecologist at teaching hospitals in Sydney".

Dr McBride's life included the attainment of high post graduate qualifications from the University of Sydney and within medical colleges of the United Kingdom and of Australia. He is a Fellow of the Royal Society of Medicine. He served for a time as a Fellow of the Senate of the University of Sydney. He gave distinguished community service on academic, scientific, health regulatory and other bodies for many years. He contributed to literature on medical research, particularly in the field of teratology. That research has not been impugned. His perception of the link between Thalidomide and malformations in neonates, and his action in bringing it to international attention through The Lancet and other journals won for him international fame. But more importantly, it helped to alert the international medical community. It probably saved thousands of human beings from gross malformation and their parents from the sorrow, burdens and recriminations which this would cause. In terms of the relief of human suffering, the reduction of gross pain and despair, it must be said bluntly that Dr McBride's contribution to humanity stands higher than that of any other person involved in these proceedings. In judging his "character", in the context of his fitness to continue to practise, it was highly relevant for the Tribunal to take this consideration into account.

As the Tribunal noted, Dr McBride worked for Foundation 41 for many years in a voluntary capacity and turned over the prize money which he won for his Thalidomide discovery. The Tribunal describes his "dignified and courteous composure" and "equitable humour" throughout its very long proceedings and his "remarkable stoicism" in circumstances which would have crushed a lesser human spirit.

The Tribunal had before it (and referred very briefly to) a series of quite remarkable statements from medical practitioners, legal practitioners and other citizens deposing to their opinions of Dr McBride's integrity, honesty, trustworthiness and general truthfulness. Thus, Sir Laurence Street, former Chief Justice of New South Wales, acknowledged that the findings made in respect of the matters relating to Hyoscine could "not... be dismissed lightly". But he expressed this opinion:

".. 1am convinced that Dr McBride sincerely believed that the drug Hyoscine presented a real danger, akin to that presented by Thalidomide. I believe that his almost crusading zeal to save women and to save future babies from that danger is the essential factor underlying the matters that have been found against him. That zeal was directed to minimising or eliminating harm and should perhaps be viewed in a very different light from misguided zeal that could in fact have caused harm of a medical nature... [B]ut, in my own estimation of Dr McBride, the sincerity of that zeal, and the very considerable credit he has earned through his work in relation to the drug Thalidomide, mitigated very substantially against what, standing alone, would attract condign opprobrium.

I believe that history will judge Dr McBride's conduct charitably... "

Mr BSJ O'Keefe QC (now the Chief Judge in the Commercial Division and Commissioner designate of the Independent Commission Against Corruption) gave a reference in which he reported his knowledge of Dr McBride for more than ten years. Like Sir Laurence Street he had been supplied with copies of the findings of the Tribunal and also the findings of the Gibbs Committee. He said:

"Accepting the correctness of the findings, nothing which I have read... causes me to alter my opinion in relation to Dr McBride, his ability, his integrity as a medical practitioner and community perception of him. Whilst I was disappointed to read what I read in relation to the scientific aspect of the complaint, my belief in relation to that is that Dr McBride was motivated by that most important of factors for a doctor, namely a desire to ensure that the health and well being of pregnant women and their babies not to be put in possible jeopardy, a jeopardy which he believed to be real. In my respectful opinion, it would be an unfortunate day for the medical profession if it were deprived of a practitioner of the ability, experience and standing of one such as Dr WG McBride."

Dr NA Fowler FRCS, FRACS considered that the findings of the Tribunal adverse to Dr McBride related to "characteristics... not to my mind typical of the man as I know him". He deposed to knowing Dr McBride for some twenty years. He described his continuing work on foetal deformities as "tireless". He stated that he was always "extremely modest about the honours and awards which had been bestowed upon him". He had never heard criticism of his behaviour, judgment or ability in medical or hospital circles. He had been happy to have his own wife dealt with by Dr McBride "on a gynaecological matter". To the same effect was the opinion of Dr Charles Ponnuthurai FRCOG, FRACOG who described Dr McBride as a man of "genuine kindness and concern". He has

always held Dr McBride "in high regard and found him to be an honest, decent, caring and reputable person". His qualities as a practitioner were "of the highest quality".

Dr Arthur Pepper who worked with Dr McBride at the Women's Hospital Crown Street stated how impressed he was with his determination "to seeing the welfare of his patients as being paramount". He explained the higher than normal incidence of caesarean sections in the way the Tribunal found it: Dr McBride had a high reputation for skill and that necessarily attracted many complicated cases.

It is into this context that the primary findings of the Tribunal must be placed in deriving from all of the evidence of the case the final conclusion and characterisation of Dr McBride's "conduct" to see whether it matches up to the statutory phrase "not of good character" in the context of an order relevant to medical practice. The evidence of good character which was tendered to the Tribunal, and largely undisputed, was not only relevant to the order which the Tribunal should make. It was also relevant to the determination and characterisation of the "character" of Dr McBride for the purpose of the complaint which charged him as being "not of good character".

I now turn back to the question whether, within the primary findings, the Tribunal misapplied the statutory test. To establish an error of law of this kind, it is not enough to hold that I would have come to a different conclusion than the Tribunal did. It is necessary that there must be such a disharmony between the primary findings stated (on the one hand) and the resulting application of the statutory test (on the other) that the only available conclusion is that the Tribunal misunderstood and misapplied the statutory test.

l accept that views may differ upon a question such as this. What seems to one judicial eye to be gross disharmony will seem to another to be permissible opinion or uncorrectable error. I also accept that in some cases a single instance of dishonesty (or a connected series of dishonest acts) may in law sustain a conclusion that a practitioner must be removed from the Register. This was the case in Davis (ibid, 426). The same point was noted in Ziems (above), 298.

But clearly, it is not every act of dishonesty which would, standing alone, properly permit a disciplinary tribunal to reach a conclusion that a person is "not of good character" for the purpose of a complaint leading to an order affecting that person's professional practice. Dishonesty to family and friends a "white lie" to the children, protective lack of candour to those who would be disproportionately hurt by it might have nothing to do with the person's functions as a practitioner. Even dishonesty in a professional context might not, if an isolated case, warrant a conclusion that the character of the person is properly classified as otherwise than ordinarily good. See Richter v Walton, Court of Appeal (NSW), 7 August 1993 (1993) NSWJB 66. Cf Fraser v The Council of the Law Society of New South Wales, Court of Appeal (NSW), unreported, 7 August 1992. In Davis the dishonesty was found to be basic and visited not only upon the Court but upon fellow practitioners who had been asked to give references as to good character. The crime involved was an extremely serious one. It was one of a dishonest and anti social character apparently incompatible with functions as an officer of the law.

The Tribunal found most of the matters complained of in Dr McBride's favour. The only matter remaining, after its most exhaustive and intensive inquiry, was the Article and Note concerning the drug Hyoscine. Its findings in regard to those publications were serious, even grave, for a research scientist. But was it, as the

Tribunal found, "most grave" and "a public mischief" in the context of the Tribunal's sole function to judge Dr McBride's "character" in a context limited to his right, relevantly, to remain on the Medical Register?

In my view, the Tribunal misunderstood the statutory test for making orders against persons "not of good character' when it determined that Dr McBride was to be so characterised for the purposes of the Act. Although the Tribunal found as it did unanimously, a number of considerations deny that the facts proved against Dr McBride have the effect of depriving him of the classification as being "of good character". In his dissenting view Professor Tracy expressly states that Dr McBride "should still be deemed of good character'. This assertion fits most uncomfortably with his participation in the "unanimous" view that Dr McBride had been proved "not of good character". But elsewhere in his dissent, Professor Tracy identifies or suggests accurately, and perceptively, most of the considerations relevant to characterising Dr McBride's "character" for the purposes of the Act. As I approach them they are:

After such an exhausting examination both of his medical practice and scientific work, in the end, only one connected series of incidents was found proved against Dr McBride;

All of the matters central to his performance of his actual practice as an obstetrician and gynaecologist were found in his favour, save for one particular matter which the Tribunal disposed of with a reprimand;

In respect of his professional reputation, the evidence (including of complainants) indicated that he was a person who generally enjoyed extremely high reputation for professional skill and integrity, as well as the loyalty of his patients and the good opinion of his colleagues;

As to his general good fame and character, the testimonials which were produced and deserved in this context deeper reflection than the Tribunal seems to have given them, spoke of fine qualities of character which deserve, indeed demand, admiration;

If, as the cases say, the motivation of the practitioner is relevant, it seems undeniable that Dr McBride's motivation for the found deception was unconnected with financial greed. His generosity in this respect had earlier been demonstrated by the surrender of his prize moneys to Foundation 41 and his years of honorary work for the Foundation. Nor would the motivation seem to be immediate personal financial gain. According to the evidence, the better view of his motivation was his deep conviction that Hyoscine was a dangerous teratogen. No one disputed this conviction. Against the background of his life and his earlier publications on Thalidomide, it was perhaps unsurprising that he would continue his work on Debendox, Hyoscine and other suspected teratogens;

When the deliberate and knowing wrong found is analysed, it can be traced to distorting the results of a single experiment. Then, having been confronted with the distortion, Dr McBride persisted with it for a time. This showed a serious error of judgment. But it is one to be weighed, considered and evaluated in the context of his life as a whole before it can be said to stain indelibly the proved underlying qualities which constitute his whole "character"; and

To the extent that the impact of such a finding of an experiment, dishonestly reported and persisted with might impinge upon public confidence in the medical profession, I entertain little doubt that the public would draw a clear line between Dr McBride's proved skills as a medical practitioner and his loss of reputation for integrity as a scientific researcher. It is the former and not the latter which the Tribunal must safeguard.

When, therefore, the Tribunal found that Dr McBride was "not of good character", it can only have done so by applying an incorrect or an unduly expansive view of the statutory expression. Given the Tribunal's primary findings, the confined and narrow ambit of the findings adverse to Dr McBride, understood in the context of the findings in his favour and appreciated against the background of the many testimonials which spoke of his good character, the only available proper classification of his "character", in the circumstances, was that it was good. A man with a basically good character for the purposes of the practice of medicine made a grievous error of judgment in reporting a scientific experiment. He persisted in it. He has paid a high price for that error. But, given the limited ambit of the adverse findings and their marginal relevance to Dr McBride's qualification as a registered medical practitioner, the finding that he was "not of good character" upon such a basis portrays an error in the application of the statutory test. Cf Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 (CA), 621. Such an error is one of law. It attracts the intervention of this Court under s90(1)(a) of the 1992 Act. It permits this Court under s91(1)(b) to make such order as it thinks proper having regard to the merits of the case and the public welfare, including by the exercise of the powers of the Tribunal under the 1992 Act. I would therefore uphold ie first case for Dr McBride.

Having determined that Dr McBride is entitled to succeed upon his first case, it would require an excess of enthusiasm to deal at any length with the alternative way in which Dr McBride sought to attack the finding that he was "not of good character". However, because I believe that this second complaint is also made good, and demonstrates an important departure by the Tribunal from requirements of procedural fairness laid down by the High Court of Australia and binding on the Tribunal's practice, it is appropriate that I should say something about the second case.

The issue is whether, in reaching its ultimate conclusions, the Tribunal impermissibly had regard to matters which did not form part of the particulars of complaint which Dr McBride was called upon to answer before it. On Dr McBride's behalf it was complained that the conclusions reached by the Tribunal as to his want of good character rested, in part, upon matters which were outside the particulars of complaint. If this argument could be made good it would demonstrate procedural unfairness and constitute an error of law. See Escobar (above). It would thus authorise the intervention of this Court limited, as it is in substantive matters, to correcting errors of law.

Before the Tribunal, the question whether Dr McBride was "not of good character" was, properly, not left at large. It was confined to the particularised complaints. A series of recent decisions have made plain what ought to have been clear formerly but was not always so. In disciplinary proceedings a person may not be found guilty of a disciplinary offence unless he or she is charged with that offence with adequate particularity and given a fair opportunity to meet it and answer it. See Smith v New South Wales Bar Association (1992) 176 CLR 256.

Smith was a case where orders of this Court were set aside wherein it was found that a barrister, inter alia, had lied to this Court. The High Court unanimously found that procedural fairness required that the Court of Appeal should not have made an order based, even only partly, on the finding that the barrister had given deliberately false evidence to * without giving the barrister an opportunity to be heard in relation to that finding. The High Court emphasised the

importance of drawing a distinction, particularly in disciplinary cases where honesty and candour assume special significance, between "the rejection of a person's evidence and a positive finding that he or she deliberately lied". See ibid, 268.

It is now necessary to notice what happened in the Tribunal concerning Dr McBride. Following the publication by the Tribunal on 5 April 1993 of its findings in relation to all complaints, the Tribunal heard argument as to the use which it could possibly make of the published finding that Dr McBride had "given false evidence in the course of the inquiry". The Tribunal was assisted in its deliberations by the decision in Smith which, by this stage, was available.

Having considered the matter, the Tribunal announced a "tentative ruling":

".. The finding of the Tribunal that in certain respects 'the Practitioner deliberately gave false evidence in the inquiry' and 'lacked candour in the evidence he gave before the Tribunal...' are not relevant factors to be taken into account by the Tribunal in determining whether the complaints as particularised have been proved."

There was then an adjournment. Counsel for Ms Walton sought leave to add additional particulars to the complaints relating to the alleged falsity of Dr McBride's evidence before the Tribunal. The Tribunal was asked, of its own motion, to "deem" a complaint referred under CL5(2) of Schedule 4 of the Act. The proposed amendments related to the suggested lack of candour of Dr McBride, and his "deliberately... false evidence" before the Tribunal in relation to the so called "Langman experiment".

The question then arose as to whether the Tribunal had jurisdiction to grant leave to the complainant to make the amendments sought. That question, being one of law, was reserved to Wall DCJ, as Deputy Chairman of the Tribunal presiding in the hearing, to determine. His Honour held that there was no power to grant the leave to amend which was sought. However, he added that, even if the Tribunal had the power to grant the leave to amend, "it would not have granted leave in the circumstances of this case". The latter ruling was scarcely surprising. The hearing had already consumed a vast amount of time. Dr McBride had been submitted to a virtually unprecedented inquiry. Almost all of the complaints made against him had been determined in his favour. The belated attempt to add a particular of complaint relating to a further experiment with two rabbits allegedly treated by Dr Langman, since deceased, would quite reasonably have seemed completely excessive.

However, following the decision of this Court in Bannister v Walton on 4 June 1993, counsel for Ms Walton sought for the third time to reopen the matter and to challenge the correctness of the "tentative ruling". He did so by reference to certain comments of Mahoney JA in Bannister. As recorded by the Tribunal:

"The Tribunal, by its Deputy Chairman, rules that in the passages relied upon by the Complainant there is no suggestion in Mahoney JA's judgment that a finding that a party has lied may be used as proof of a complaint in which it was not alleged, as opposed to determining what protective orders might be made once proof of the complaint has been established."

In my opinion, this finding of the Tribunal was correct, both as an application of Smith and of Bannister and as a simple application of the requirements of procedural fairness.

However, when it came to the determination of the ultimate finding of whether Dr McBride was "not of good character', the complaint made by Dr McBride is that the Tribunal, contrary to its rulings, proceeded to adopt the submissions of

Ms Walton. Specifically, the Tribunal relied upon Dr McBride's alleged failure frankly and honestly to concede his error, including before the Tribunal, the Gibbs Inquiry and outside the Tribunal to his colleagues.

The offending passage in the Tribunal's reasons is:

"Senior counsel for the Complainant submitted that the findings of personal misconduct do not relate to an isolated instance. He argued the findings related to Dr McBride's honest conduct commencing in 1980 and that misconduct had never been frankly and honestly confronted by the practitioner. There has been no clear statement that he understands that what he did was wrong There has been no concession by the practitioner of wrong doing in anything like the terms of the misconduct found by the Tribunal. Senior counsel for the Complainant submitted that in mid 1982 Dr McBride, when confronted by his co authors with their complaints of the fraudulent nature of the Article and the attribution of their co authorship without their knowledge or consent did not have the strength of character to admit to them that what he had done was wrong Again, in late 1982 at the meeting of the Research Advisory Committee, the practitioner was not honest and frank with his senior colleagues nor was the note itself an honest disclosure of the misreporting which occurred in relation to the Article. In December 1987 the practitioner had a role in the preparation and the publication of the press release issued by Foundation 41 and in that press release the course of deception and distortion of the truth was continued. In July 1988 the Gibbs inquiry was undertaken... and in the material he provided to that inquiry there was less than a full and frank admission of his misconduct and there was an attempt at justification.

Moreover, whilst the findings relate to a history of an isolated incident which gave rise to continuing problems which compounded it, the history includes many opportunities for the practitioner to make an honest disclosure of what happened and to retrieve his good character. If this had been done his conduct could now be excused. This did not happen.

There is force in the submission of senior counsel for the Complainant that the conduct complained of is not isolated in that it reflected an underlying deficiency in the morality of the practitioner as to how he should deal with a matter at the heart of medical science. For years he had engaged in medical research with a high profile yet he did not consider himself necessarily bound by the principles of rigorous scientific experimentation and meticulously honest reporting if he believed an early warning should have been given to the public of a drug he considered to be a potential teratogen. This personal philosophy was one that could not be accepted by his medical and scientific colleagues and it was a philosophy he was not prepared to disclose to them for obvious reasons. Whilst he acknowledged at the Inquiry he now accepts the proper principles of scientific research should always be applied, over a number of years prior to the Inquiry he did not accept that those principles were appropriate and should have been applied. This illustrates a frailty in the character of the practitioner...

The lack of all sense of intellectual and moral honesty which this episode reveals in the life of a man long trained in the academic and clinical disciplines of an honourable profession and charged with the destiny of a medical research institute depending on public support is most reprehensible and demonstrates a lack of good character in the context of fitness to practise medicine.

This trait of dishonesty was again demonstrated in his response to his junior colleagues..; in his response to his senior research colleagues on the Research Advisory Committee; his distortion of the truth in the publication of the Note; in

his participation of the distortion of the truth in the publication by the Press Release by Foundation 41; in his conduct before the Gibbs Inquiry and FINALLY IN HIS CONDUCT BEFORE THIS TRIBUNAL." (emphasis added)

It is clear that this passage is critical to the determination by the Tribunal that Dr McBride was "not of good character" in the context of his fitness to practise medicine. And in the passage cited, the Tribunal clearly relied upon matters which were not ie subject of particulars in support of the charge of want of good character namely:

2. His response to his senior research colleagues on the Research Advisory Committee;

3. His participation in a distortion of the truth in the publication of the press release;

The concluding reference to Dr McBride's "conduct before the Tribunal" is in direct conflict with the thrice repeated ruling by the Tribunal that such conduct could not be relied upon (so far as it suggested dishonesty as a fresh basis for action) without fresh complaint and/or particularisation which, in the circumstances, was denied.

Various valiant attempts were made for Ms Walton to defend the contradiction between the ultimate conclusions stated by the Tribunal and the properly strict approach it took, compatibly with Smith and Bannister, to confine the matters under its inquiry to those which had been charged and particularised. Thus, it was urged that it was unrealistic to say that Dr McBride had been denied an opportunity to meet the matters contended for by counsel for Ms Walton as all such matters had been set out in written and oral submissions. I cannot agree. A party is not obliged to meet the submissions of lawyers where these go beyond particularised charges, at least in a matter of the complexity and length of these proceedings and in the face of the thrice repeated ruling of the Tribunal.

Then it was said that the passage relied upon was being read out of context. As I read the context, there is a clear contradiction between the Tribunal's proper procedural rulings and what it ultimately misled itself into relying upon in reaching its ultimate conclusion of lack of good character.

Next it was said that, notwithstanding Smith and Bannister, and the rulings of the Tribunal upon them, it was in fact open to the Tribunal to find Dr McBride to be an unreliable witness who gave false evidence before it in respect of the Langman experiments and that this false evidence showed a want of reformation on his part. I cannot agree. It was the whole point of Smith to emphasise that, in the serious business of disciplinary hearings, a person charged is to be dealt with only on the matters charged and particularised. He or she is not under an inquisitorial scrutiny but an inquiry which must proceed with fairness and in accordance with the rules of due process. See also Johns v Law Society of New South Wales [1982] 2 NSWLR 1, (CA), 6; O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 (CA), 210, 224f. Especially in the light of the rulings of the Tribunal that he would not have to face (indeed could not upon the original complaint face) particulars relying upon conduct which arose after the complaint was filed, it was unreasonable to expect Dr McBride to anticipate that such matters would be taken into account. It was unreasonable and wrong for the

Tribunal to take them into account. They should have been disregarded. Taking them into account amounted to an error of law. It warrants and requires the intervention of this Court.

Finally, it was said in support of the Tribunal's decision that the relief that would be provided on this ground would be tailored to meet the requirement of the particular case. It is not every departure from the rules of procedural fairness that requires disturbance of orders under scrutiny. Cf Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. Whilst this is true, it is pointed out by the High Court in Stead (loc cit) that where the denial of procedural fairness established affected the entitlement of a party to make submissions on an issue of fact (especially where the issue is whether the evidence of a particular witness should be accepted): "... it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference."

In ordinary circumstances the established offence to the rules of procedural fairness would require the rehearing of this matter before the Tribunal for this Court has not seen Dr McBride give evidence. However, having regard to the extreme protraction of the litigation, its consequences for Dr McBride's practice to date and the high desirability (as I would see it) of bringing the proceedings to an end, I consider that the only just remedy to the established departure from the rules of procedural fairness is for this Court to reach its own conclusion. It has ample power to do so under s91(1)(b) of the 1992 Act. It can do so justly in this case by excising completely from the decision the reference to, and reliance upon, matters not particularised in the complaints filed in the Tribunal. This means that the determination of Dr McBride's "character", or lack of good character, would fall to be considered strictly in the light of the uncontested primary facts found by the Tribunal against him. As I have said in disposing of the first case of Dr McBride, the proper application of the statutory standard to those facts results in a finding that his dishonest reporting of the Hyoscine experiment, and his persistence with the dishonesty in the misleading Note published, whilst serious, do not (properly applying the statute) require or warrant Dr McBride's characterisation as a person "not of good character" for the purpose and in the context of medical practice.

All other relevant matters of complaint having been determined against Ms Walton and in favour of Dr McBride, the conclusion upon the first (misapplication of the statute) and second (procedural fairness) cases of Dr McBride is that the complaint should be dismissed. In the context in which the phrase appears, it has not been shown, to the requisite standard, that Dr McBride was "not of good character" for the purpose of medical practice. The contrary conclusion of the Tribunal resulted from a misunderstanding and misapplication of the Act and from the determination of the question, in part, upon the basis of matter which was outside the particulars alleged.

ASSUMING "NOT OF GOOD CHARACTER" WHAT IS THE PROPER ORDER?

If, however, I am in error in any of the foregoing and the Tribunal correctly determined that Dr McBride was "not of good character" upon the sole ground found, I would nonetheless, on the facts found by the Tribunal, make a different order than that made by the Tribunal on the basis of the opinion of the majority, viz removal of Dr McBride's name from the Medical Register.

Iremind myself that the power of the Supreme Court is to make such order "as it thinks proper" if, in determining the appeal, it reaches a conclusion that an order other than dismissal is proper. See the 1992 act, s90(1)(b). It is then obliged to have regard not only to the merits of the case but also to the public welfare. See the Act, s 91(1)(b). It is empowered to exercise afresh the powers of the Tribunal. As the proceeding is deemed to have been brought under the Medical Practice Act 1992, those powers are the powers of the Tribunal stated under that Act. Under s61(1) of the 1992 Act, the powers include (relevantly):

(b) order that the person seek and undergo medical or psychiatric treatment or counselling;

(c) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration;

(d) order that the person complete such educational courses as are specified by the... Tribunal.

The Tribunal is also empowered by s62 to impose a fine in certain circumstances. It may be s64 order the suspension of a person from practising medicine. This Court has all of those powers. None of them, save reprimand or possibly suspension, is relevant to the case as an alternative to the order made.

Accepting ie conclusion of the Tribunal in respect of the limited matters in respect of which Dr McBride has been found to have been dishonest, and accepting for present purposes (contrary to my finding) that this shows him to be "not a person of good character", I have concluded with Professor Tracy that the appropriate power which the merits of the case and the public welfare require is an order of reprimand. It is not removal of Dr McBride's name from the Medical Register.

My reasons for so concluding are very similar to those stated by Professor Tracy in the Tribunal. He pointed out that the inquiry into Dr McBride's practice was the "longest inquiry in the history of complaints against a medical practitioner". Yet they were, in all but one particular of one complaint, found in Dr McBride's favour. As Professor Tracy observes as a mitigating factor:

"The Tribunal had a unique opportunity to observe Dr McBride's professional conduct as an obstetrician, stemming from a retrospective analysis of his obstetric practice in three teaching hospitals over a period of 10 years, a method for generating complaints which must surely be unique in the history of the Medical Tribunal. These cases must be assumed to be the worst cases managed by Dr McBride, but even through these it was apparent that he generally enjoyed the trust and loyalty of his patients."

Professor Tracy then analysed the remaining cases of "scientific fraud", excluded the cases which had been determined in Dr McBride's favour, accepted the seriousness of the distortion of the Hyoscine experiment, acknowledged the "serious lack of scientific rigour" demonstrated by his work but then concluded:

"In assessing Dr McBride's character, mitigating factors which should be acknowledged include the following:

Dr McBride obtained no financial reward for his research activity, working always in an honorary capacity for Foundation 41 - which was originally set up as a result of his own substantial donation from the international prize received in Paris from his original discovery of Thalidomide teratogenicity.

Dr McBride is now at the end of a distinguished career as a leading obstetrician in teaching hospitals in Sydney, having earned widespread acclaim for his initial discovery of Thalidomide malformations in neonates;

Several referees distinguished either in the medical or in the legal profession have given strong testimony of Dr McBride's underlying goodness of character. These testimonials are all written by people who have known him for a long time and known him well. They indicate familiarity with the findings of the Tribunal and give sound reasons why Dr McBride should STILL BE DEEMED OF GOOD CHARACTER. They all assert that Dr McBride's behaviour in the matter of the Article fraudulently reported in the Australian Journal of Biological Science embarked him on a course of conduct which was an abhorration isolated from his past and likely future conduct." (emphasis added)

Professor Tracy ended his decision in words which I find entirely convincing:

"Tt should be noted that Dr McBride has already suffered grievous penalty for his episode of transgression. His scientific reputation has been damaged to the point that Foundation 41 has been seriously compromised in the prosecution of medical research.

He has been obliged to attend hearings of the Tribunal since it commenced in September 1989, and had to suffer the ordeal of 41 days cross examination himself. During the Tribunal he was invalided for a period with... bypass surgery. Because of the inordinate length of the inquiry, he has already experienced crippling reduction in his capacity to practise as an obstetrician, and would suffer severe financial penalty as a consequence of the adverse findings in relation to the complaint of scientific fraud. In my opinion to apply additional penalties such as suspension, or removal from the Register, would be both unmerited and excessive."

Considering the merits of the case and the public interest, I have firmly reached the same conclusion. The issue is current fitness to practise. In effect, by the de facto removal of Dr McBride from his practice during the hearing before the Tribunal (or at least so much of it as he gave evidence) and since the Tribunal's order, unrelieved by any stay, Dr McBride has been removed from his practice for considerably more than two years. He has suffered a great deal of humiliating publicity. This has occurred in all outlets of the media in which his now uncontested distortion and dishonest manipulation of scientific data has been given the most widespread publicity. His reputation as a scientific researcher lies in ruins. His hope for an enduring legacy of his perceptive discovery of the teratogenetic effects of Thalidomide - Foundation 41 - has been grievously wounded. Medical research itself has, to some extent, been damaged when a previously distinguished and respected member of the medical profession and scientific community is exposed in this way. It must be said quite bluntly: there is no public interest in the distortion of scientific material. The interests of science, and of medical research, lie only in the discovery of the truth. Dr McBride should have known this. He has now been taught that lesson in the most public, time consuming, expensive and humiliating way imaginable.

By a notice of contention, Ms Walton picked up an apparent concession by Dr McBride's counsel, given before the Tribunal, that if a want of good character was proved, removal from the Register was the only appropriate order. Given that, under the Act (1938 s15; 1992 s13) good character is required at entry to the profession, it was argued that proof of a want of good character required exit from the profession, if only for a time during which good character might be restored.

I do not read the concession by counsel for Dr McBride in the way it was argued. However it may have been offered before the Tribunal, it does not bind Dr McBride in this Court. If necessary, his counsel seeks to withdraw it. As a matter of construction of the 1992 Act, I would not favour the absolute view that every finding of want of good character automatically and without more requires removal of the name of the medical practitioner from the Register. To so conclude would be to defy the discretion which is reserved by Parliament to be applied according to the circumstances of each case. The want of good character proved might be a transient, temporary thing, effectively put in the past. Given that the test is current fitness to practise it is scarcely convincing to say that the finding obliges removal of the name of the medical practitioner form the Register, whatever the circumstances.

The evidence before the Tribunal, now before this Court, proves beyond doubt that, in his actual practice as an obstetrician and gynaecologist, there is absolutely no risk to the public in Dr McBride's resuming is professional activities. No other conclusion could be derived from the unprecedented audit of ten years of his professional work. It is in the public interest that such a skilled and professionally well considered practitioner should resume his practice. The risk to the public that he would ever again offend against the strictest rules of medical research (assuming that he resumed such research) must be seen as extremely remote. In this respect the case resembles Richter v Walton (Court of Appeal (NSW), unreported, 15 July 1993; [1993] NSWJB 66.

Nor do I believe that any damage which the collective medical profession may have suffered from the exposure and fall from grace of Dr McBride requires, for a hypothesised want of good character, the removal of his name from the Register. The Court does not, any more than the Tribunal, take hostages to punish a practitioner. That would be to administer the Act for ulterior motives.

Even the noble motive of upholding honesty in scientific research or the more questionable motive of pandering to public opinion of the estimate of the profession as evinced in media editorials or professional commentaries does not require or permit removal of Dr McBride's name from the Register. The Court's concern is simply to apply the statute. Where the only professional misconduct proved was dealt with adequately by reprimand and where the remaining cause for complaint is a suggested want of good character on the part of a senior practitioner, it is essential to consider that found default and to ask whether it is indicative of a wider mischief or simply isolated and uncharacteristic conduct unlikely to recur. Where the Court concludes that the conduct is isolated, unlikely to recur and not such as to affect the professional functions of the practitioner, it will not be in the public interest to deny the practitioner the opportunity of practising the profession. This was the conclusion reached in Ziems, Fraser and Richter. It is the conclusion which I would unhesitatingly reach in this case.

It is relevant to note here the judgment of the Privy Council in Gonsai v General Medical Council (Privy Council), unreported, 1 December 1992.

Consideration was given in that case to the faithful service of the practitioner including to the general community, the particular devotion of the practitioner to disadvantaged people and the conclusion that the "dishonest conduct was an uncharacteristic departure, inexcusable and inexplicable, from the high standards of probity and integrity which [the practitioner] had established in the course of a long career...". Ibid. Attention was also paid to the general public interest as our Act requires. The need for care in reviewing orders on appeal is shown in such cases as McCoan v The General Medical Council [1964] 1 WLR 1107 (PC),

1112. But this line of authority must be read, in this jurisdiction, as subject to the statutory language which grants a general appeal against such orders and enlivens specific attention to the public interest.

The purpose of the jurisdiction to discipline medical practitioners, grounded in a finding of want of good character is, in the ultimate, not to uphold the integrity of scientific research relevant to medicine. Nor is it to give voice to moral disapprobation. Still less is it to visit on a senior practitioner additional burdens because the practitioner's fall from grace has attracted much public and attention. The jurisdiction is there to protect the public, including by the maintenance of high standards of practice amongst practitioners.

Upon the basis of the hypothesis (contrary to my finding) that a want of good character was established against Dr McBride, I am of the view that the correct order for all of the misconduct found is that Dr McBride should be rebuked. Even upon that hypothesis, no other order would be appropriate when the merits of the case and the public interest are taken into account. Enough is enough. This man, to whom the world and unnumbered babies born without deformity, and their families, owe a considerable debt, has had the error of his found misconduct adequately brought home to him. He should be allowed, for his remaining days of practice, to return to his professional activities. It can there be safely left to his peers and his patients to judge the significance of his "scientific fraud", as found, for his practice of medicine, for which only the restoration of his name to the Medical Register is a prerequisite.

The Tribunal ordered Ms Walton to pay Dr McBride's costs of the inquiry into the obstetric complaints on an indemnity basis, save for the costs incidental to the particular which was found proved. As to that matter each party was ordered to pay his or her own costs.

So far as the inquiry into the alleged want of good character on the part of Dr McBride was concerned, the Tribunal ordered each party to pay his or her own costs.

By her cross appeal, Ms Walton challenges these orders.

As there was no appeal to this Court against the findings in respect of the "obstetric complaints", it would seem to follow that, at the least, a decision of the Tribunal that Ms Walton should pay Dr McBride's costs of those complaints would be unassailable as an exercise of discretion. In issue would be the additional order that they be paid on the indemnity basis.

As it is my primary conclusion that, as a result of the appeal, the finding that Dr McBride was "not of good character" must be set aside, a different order for costs needs to be considered in respect of the proceedings in the Tribunal in the "character complaints".

Ms Walton raises, by the cross appeal, certain matters of general importance concerning the powers and procedures of the Tribunal in relation to the ordering of costs. For shortage of time, the Court adjourned the hearing of the argument on those questions to be dealt with after the substantive matters in the appeal had been disposed of. That disposition will, in the view I hold, affect the outcome of the hearing in the Tribunal and thus be relevant to the costs orders there.

As previously foreshadowed, the cross appeal as to costs should be relisted for argument, in the light of the outcome of the appeal.

2. Set aside the order made by the Medical Tribunal of New South Wales that the name of William Griffith McBride be removed from the Register of Medical Practitioners;

(a) in respect of the sole particular in regard to which the complaint of professional misconduct was established in his obstetrics practice, the order of the Tribunal that Dr McBride be reprimanded therefore be confirmed; and

(b) that in respect of the complaints that Dr McBride was a registered medical practitioner who was "not of good character" be dismissed;

Order that the name of William Griffith McBride be restored to the Register maintained under the Medical Practice Act 1992;

Order that the respondent pay the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951;

Reserve the orders as to the costs before the Tribunal to be disposed of consequent upon the hearing of the cross appeal herein; and

Direct the Registrar to relist the cross appeal with expedition.

Handley JA This is an appeal by Dr McBride (the Doctor) from the decision of the Medical Tribunal given on 30 July 1993 ordering, by majority, that his name be removed from the Register of medical practitioners. The Tribunal had conducted a long inquiry into complaints initiated by the respondent, the Director of the Complaints Unit, Department of Health. The complaints were lodged with the Tribunal on 21 June 1989. They fell into two categories. The first consisted of allegations of professional misconduct in the course of the Doctor's practice as a gynaecologist and obstetrician. The second consisted of allegations of scientific fraud in the course of the Doctor's medical research.

The inquiry was heard in stages. The hearing of the obstetrics complaints commenced on 6 November 1989 and concluded on 22 February 1991. The hearing of the scientific fraud complaints commenced on 18 March 1991 and concluded on 7 June that year. On 19 February 1993 the Tribunal handed down its findings of fact on both categories of complaints. The findings on the scientific fraud complaints were in Book 7. After further interlocutory hearings the final stage of the inquiry commenced on 31 May when the Tribunal heard submissions from the parties based upon its earlier findings. The hearing concluded on 16 June. On 30 July the Tribunal delivered its further reasons and pronounced final orders.

The inquiry was conducted pursuant to the Medical Practitioners Act 1938 (as amended). This Act was repealed and replaced by the Medical Practice Act 1992 with effect from 1 July 1993. The Tribunal's orders were made after the commencement of the new Act. CL11 of Schedule 5 - Savings and Transitional Provisions - of the new Act provides:

"11. (1) The provisions of the 1938 Act continue to apply to and in respect of a complaint made, or an inquiry or appeal commenced, under that Act and pending immediately before the repeal of that Act.

(2) Any order, decision or determination resulting from any inquiry or appeal to which this clause applies is taken to have been made under the corresponding provisions of this Act and is to have effect accordingly."

The inquiry having been commenced under the old Act could therefore be completed after its repeal. CL11(1) does not in terms authorise the commencement of an appeal from orders made in a pending inquiry. However CLI11(2) does not make the new Act applicable to an appeal from orders made

under the old Act. It is directed to the administrative and consequential effects of the order, rather than its validity. A construction of subCL(2) which would make the new Act applicable to an appeal would give rise to a remarkable inconsistency with subCL(1) under which the old Act continued to apply to the inquiry. The better view is that the provisions of the old Act which continue to apply to a penandg inquiry include those authorising an appeal from orders made in that inquiry. The provisions authorising such an appeal are, I think, provisions "in respect of" such an inquiry. If I be wrong in this view I would hold that the general provisions of s30(1) of the Interpretation Act 1987 apply in cases not covered by the special provisions in the Schedule. The Schedule is not a complete code because CL2 enables further savings and transitional provisions to be made by regulation which may have retrospective effect to the date of repeal. Compare GF Heublein and Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 at 161 and 162. In my opinion therefore the old Act applies to this appeal, although it appears that nothing of significance turns on this question.

The Tribunal in its findings of 19 February 1993 concluded that only one out of the grounds in the obstetric complaints had been proved. However it upheld a substantial number of the grounds in the scientific fraud complaints. The complainant made a number of applications for leave to add further grounds of complaint based upon some of those findings but these applications were rejected.

In its final decision the Tribunal held that the Doctor should be reprimanded for the proved obstetric complaint. In relation to the scientific fraud complaints found proven it held that the Doctor "is not of good character in the context of fitness to practise medicine". The majority said: "Dr McBride's conduct, his statements and his writings which have been reviewed by the Tribunal, indicate to the majority... a serious degree of intellectual and moral dishonesty. He has exhibited and still exhibits a degree of casuistry which is incompatible with a real insight and understanding of the obligations required of a medical practitioner and incompatible with membership of an honourable and self respecting profession. The majority conclude that in the light of the findings and the conclusion reached in relation to Dr McBride's lack of good character public confidence in the integrity of the profession would be seriously undermined if he were to remain a member of the profession. Accordingly the majority... conclude the appropriate order is for the name of the practitioner to be removed from the Register."

Professor Tracy dissented because he considered that a reprimand would be sufficient and that any additional penalty would be "unmerited and excessive".

Under s32U of the old Act combined with s48 of the Supreme Court Act an appeal lies to this Court against a decision of the Tribunal "with respect to a point of law" (s32U(1)(a)) and against "the exercise of any power under s32R... " (s32U(1)(b)). The order for the removal of the Doctor from the Register was made under s32R. The Doctor's appeal has challenged for error of law the Tribunal's finding that he is not a person of good character and the manner in which it reached that finding. The appeal against the order removing his name from the Register is from an order made in the exercise of a judicial discretion and is governed by the principles in House v The King (1936) 55 CLR 499. This appeal is not confined to errors of law but the appellant is bound by the factual findings of the Tribunal unless these can be set aside for error of law. See Bannister v Walton (1993) 30 NSWLR 699.

S15(1) provided that a person with the prescribed qualifications and experience is entitled to be registered by the Medical Board as a medical practitioner "'if... (c) he satisfies the Board that he is of good character". S28(1) provided that a complaint may be made that a registered medical practitioner "(f) is not of good character". Complaints may be made by any person, by the Board or its Secretary and in appropriate cases are referred to the Tribunal.

The other grounds of complaint specified in s28(1) include being convicted of an offence, drunkenness or addiction to drugs, lack of the physical or mental capacity to practise medicine, and professional misconduct. This expression is comprehensively defined in s27(1) as including the conduct specified in the paragraphs that follow "or any other improper or unethical conduct relating to the practise of medicine". Lack of good character as such is not within this definition but conduct falling within those paragraphs would frequently establish lack of good character.

The Doctor's first submission was that the Tribunal had erred in law because the primary facts found did not amount to proof of a lack of good character. The submission as developed was that:

"Not of good character in the Medical Practitioners Act means unfit, by reason of inherent or intrinsic personal characteristics and qualities to be held out as a medical practitioner. The concept of good character, or lack thereof, is concerned not with isolated acts or omissions but essential qualities. The particulars proved against Dr McBride established that in respect of one isolated course of conduct he had been dishonest, but not that dishonesty was typical or characteristic of him.

Mr Sackar QC who appeared for the Doctor submitted that this involved an error of law because an ultimate finding of fact is wrong in law where it can be shown that the primary facts fall within or outside a statutory description, and a contrary decision has been made. He also submitted that the Doctor's practice of medicine had not been affected by any manifestation of dishonesty. In my opinion these submissions are either an invitation to ignore the plain words of the Act or a disguised attempt to challenge the findings of fact.

The ground of complaint is that the Doctor "is not of good character'. Parliament has made a legislative judgment that persons who were not of good character should not be registered. Medicine was to be an honourable as well as a skilled and learned profession.

The meaning of good character in the old Act was considered in Ex parte Tziniolis Re Medical Practitioners Act (1966) 67 SR (NSW) 448. The Medical Board had declined to register the applicant because it was not satisfied that he was of good character. He appealed to this Court. The conduct relied upon had not occurred in or in connection with the practice of medicine. It included obtaining an immigrant visa by bribery, a willingness to knowingly encourage breaches of the rules binding on foreign doctors, the writing of a malicious, scandalous and lying letter to the father in Greece of a Greek/Australian to cause the latter trouble and embarrassment, and the sending of a letter to his mother in law in Greece which was grossly indecent, vicious and cruel. This Court unanimously dismissed the appeal.

Wallace P said at 460 that conduct may show a defect of character incompatible with membership of a self respecting profession. Walsh JA said at 451 and 452 that in deciding whether the applicant was of bad character: "... the Court is required to consider matters affecting the moral standards, attitudes and

qualities of the applicant and not merely... his general reputation... we are entitled to enquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining... whether or not the applicant is a man of good character, whilst recognising that there may be some kinds of conduct deserving of disapproval which have little or no bearing on the question whether... an applicant for registration as a medical practitioner is a person of good character."

Holmes JA at 475 rejected the argument that the test of good character referred to the applicant's reputation and not to his disposition. He said that "good" was used in the sense of moral strength and referred to the quality of a person which was to be judged by his behaviour and the associated mental and emotional conditions. He said: "A man's conduct in respects known only to his intimates can evidence his character" (475).

Accordingly I would reject the arguments for the appellant to the extent to which they invited the Court to qualify the plain words of s28(1)(f) or to substitute other words for the statutory language. In particular I reject the submission that lack of good character can only be established by conduct which affected the Doctor's fitness to practise as a registered medical practitioner. In Re Davis (1947) 75 CLR 409 at 420 Dixon J in an analogous context referred to the requirement of good character as "the test of ethical fitness" which requires "enduring moral qualities".

The Doctor's submission that the primary facts found did not amount to proof of lack of good character requires further reference to the findings. The scientific fraud complaints found established related in the main to an article entitled "Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo" in Australian Journal of Biological Science (1982) Vol 35 at 173 (Complaint 9) and to a "Note on the Paper 'Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo" in that journal (1983) Vol 36 at 131 and 132 (Complaint 10).

"The Tribunal has found that Dr McBride deliberately made false statements in the article in relation to the experimental data, deliberately misreported the method of an experiment and included spurious data. Moreover the Tribunal found that the explanation for this conduct was his desire to strengthen the appearance of the experiment as a properly designed experiment in order to enhance the publishability of the Article and hence provide support for his hypothesis that Hyoscine may be a teratogen (ie cause birth defects).

In relation to... the Note... Dr McBride caused to be published... statements... which he knew were misleading.... the explanation for this conduct is that he did not wish to make public that... the Research Advisory Committee of Foundation 41 (a medical research foundation established by Dr McBride) had considered a complaint by the co authors of the article that the description... and experimental data... did not correspond with their recollection... nor with the contemporaneous records... and that... the Committee had directed that there be a retraction of the relevant published material.

The publication of the Note is significant because it is the first public response by Dr McBride to the allegations of scientific fraud.... The publication was the result of... 'Peer Review'... by... the Research Advisory Committee. Dr McBride was responsible for the wording of the Note which was a deliberate distortion of the true situation and was the first step on a course of evasion and deception to

avoid accountability for his fraudulent conduct which the Tribunal found has continued up to and during the course of the inquiry."

"To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine one must consider:

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner."

The Tribunal determined each of these issues adversely to the Doctor. On the first they said:

"Tt was moral blindness rather than error of judgment which led (the Doctor) on a course of calculated deception... (his) misconduct... leading up to the publication of the Article and the Note can only be explained as emanating from a defect or flaw in his character. An essential quality of good character is honesty... his denials to Mr Vardy and Ms French of any wrongdoing demonstrate(s) that he lacked this necessary moral discipline to conduct himself honourably when honesty is at stake".

The Tribunal noted that as the Director of Medical Research at Foundation 41 and as an expert witness called on behalf of plaintiffs in product liability cases in the United States the Doctor held himself out as an experienced medical practitioner and researcher. It rejected submissions based on the Doctor's belief that hyoscine was a teratogen and held that his concern for the public welfare could not justify the fabrication of material data to support that hypothesis. It assessed the intrinsic seriousness of the proven misconduct under Complaints 9 and 10 "to be most grave, to be a public mischief".

The Tribunal found that the Doctor's motive was his desire to enhance the publishability of the article and rejected the submission that he had acted with the high moral purpose claimed. It then considered whether the conduct was only an isolated episode. The adverse findings related only to the Article and Note and his counsel submitted that in the ten years since "there has been no manifestation of similar misconduct which suggests that the misconduct in question is not characteristic or typical of Dr McBride".

Senior counsel for the Complainant however submitted that it was not an isolated episode because it continued from 1980 until the Inquiry in 1988 conducted on behalf of Foundation 41 by Sir Harry Gibbs. Having rehearsed the arguments the Tribunal said that it:

".. has come to the unanimous view that the particulars found proven in Complaints 9 and 10 establish to its comfortable satisfaction that Dr McBride is not of good character in the context of fitness to practise medicine... Dr McBride's conduct in causing the publication of the Article... was not the honest

mistake of a naive man...; it was not an error of judgment... His acts were not made in haste; they were not made by a man in poor physical or mental health. His acts demonstrated... premeditated deception in a field of medical research and indicate a serious flaw or defect in his character, a trait of dishonesty.

The lack of all sense of intellectual and moral honesty which this episode reveals... demonstrates a lack of good character in the context of fitness to practise medicine. This trait of dishonesty was again demonstrated in his response to his junior colleagues, Mr Vardy and Ms French; in his response to his senior research colleagues on the Research Advisory Committee; in his distortion of the truth in the publication of the Note; in his participation in the distortion of the truth in the publication of the Press Release by Foundation 41; in his conduct before the Gibbs Inquiry and finally in his conduct before this Tribunal... These episodes provided true tests of Dr McBride's character and indicate a continuing frailty of character, an inability to accept the responsibility of being truthful and trustworthy in accordance with the high ethical and moral standards of his profession. (He) mirrors the classic tragic character - the person of eminence in public life whose good deeds and interest in human welfare command respect and admiration but who is brought down by a fatal flaw in character... Although the proven misconduct occurred some eight years prior to the lodgement of the complaints the Tribunal is required to consider... present fitness... it is necessary to consider the conduct of Dr McBride over the intervening years... to determine whether,... he has retrieved his good character and is now a practitioner the Tribunal can with confidence hold out to the public and the profession as trustworthy."

"Dr McBride had an obligation... to answer directly and honestly all questions... touching or concerning the Complaints. Dr McBride failed to fulfil his obligations to the Tribunal. The Tribunal is of the view that throughout the course of the Inquiry Dr McBride demonstrated that he had no insight or real understanding of the basic requirement that a medical practitioner act in accordance with the highest degree of integrity."

The Tribunal (or the majority) referred to some of the examples in Book 7. I will merely refer to some of the unanimous conclusions in that Book:

"Dr McBride did not impress as an honest witness doing his best to tell the truth on the issues. His testimony and his manner in giving it left the Tribunal with a deep sense of unease. His answers at times were evasive and unresponsive. The frequency of these occurrences and the inappropriateness of his answers at many points in his evidence led to the Tribunal coming to the firm view that he was deliberately being evasive as a tactic to avoid the issue raised by the cross examiner." (Overview 1)

"His attempts in cross examination to give an explanation for the conflicts in his evidence at the Hagaman trial (in the USA) and his evidence at this inquiry were wholly unconvincing and demonstrated that he was prepared to give fanciful explanations". (Overview 9).

"(Dr McBride's) evidence demonstrated internal contradictions inconsistencies inventions evasions and falsehoods. The Tribunal found him to be an unreliable witness whenever his interests were at stake on a disputed issue." (Overview 19)

The Tribunal (or the majority) also referred to two examples not dealt with in Book 7. I will only refer to one of these. On 4 September 1989 the Doctor gave a written opinion on behalf of a plaintiff in contemplated proceedings in the USA

in which the claim was to be made that his birth defects were caused or contributed to by his mother's ingestion of certain drugs during her pregnancy. His report was favourable to the plaintiff and concluded that it was based upon "my education, training and experience, and using proper scientific methodology". The report referred to the scientific literature on which it was based which included the Article and the Note. This report was given some two and a half months after the Complaints had been served.

Before the Tribunal the Doctor did not seek to defend the scientific methodology used in the research work referred to in those publications. The majority's conclusion was:

"Dr McBride's conduct, his statements and his writings which have been reviewed... indicate... a serious degree of intellectual and moral dishonesty. He has exhibited and still exhibits a degree of casuistry which is incompatible with a real insight and understanding of the obligations required of a medical practitioner and incompatible with membership of an honourable and self respecting profession."

In my opinion these findings are not vitiated by any legal error. The Tribunal did not misdirect itself by defining otherwise than in accordance with law the questions of fact which it had to decide. See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 166 per Glass JA. Nor did its ultimate findings reveal error of law because they were necessarily outside the statutory description "not of good character". (Above at 156). See also Edwards v Bairstow [1956] AC 14 at 36 and Ex parte Robert John Pty Ltd Re Fostar's Shoes Pty Ltd (1962) 63 SR(NSW) 260 at 272.

The Tribunal's finding that the proved misconduct was not an isolated episode is not open to review by this Court. It found that the course of conduct commenced in 1980 and was still continuing during the hearing in 1991. It did not involve patients but involved the medical scientific community, junior colleagues, senior colleagues, the press, the public, the Gibbs Inquiry, the Tribunal and the persons invited to act on the report of 4 September 1989.

"After successful publication of the Article, Dr McBride was confronted by co workers... with the falsifications, whereafter Dr McBride compounded his transgression by attempting to justify all the alterations and most serious of all, by falsely asserting that experiments on the two additional rabbits had been carried out by a colleague in America now deceased. In a vain effort to preserve his own scientific reputation and the reputation of Foundation 41 Dr McBride persisted with his denials of any wilful deception through the years which followed up to the conclusion of the Inquiry... by the Tribunal... This demonstrates a sustained episode of misconduct which reflects adversely on Dr McBride's underlying character."

The conclusion of both majority and minority reflect common experience. Shakespeare has Hamlet state (Act I Scene IV):

The Tribunal was bound to consider the Doctor's conduct after the publication of the Article and the Note. It had to determine whether the Doctor "is not of good character" (s28(1)(f)). The present tense is compelling. This ground of complaint focuses on the character of the practitioner at the time the Tribunal comes to determine the question. See Ex parte Tziniolis at 475 per Holmes JA. Where, as in this case, the misconduct alleged to establish lack of good character relates to events which occurred sometime before, proof of that misconduct, without more, will not necessarily enable a finding of lack of good character to be made.

Re Davis (1947) 75 CLR 409 is in point. At 416 Latham CJ said:

"... the Court may consider any conduct... which is relevant to the question of whether he is a fit and proper person to continue to be a barrister... recent and more distant behaviour may be taken into account. It is not possible to draw a line... When a question arises in 1947... it is not irrelevant to consider facts which happened in 1934, 1944 or 1946. Such facts may be most informative as to his character. When a considerable period of time has elapsed past facts should be considered in the light of the lapse of time, and weight should be given to the subsequent behaviour of the person concerned... A man may be guilty of grave wrongdoing and may subsequently become a man of good character."

Thus the Tribunal did not misdirect itself when it said:

"Although the proven misconduct occurred some eight years prior to the lodgment of the Complaints, the Tribunal is required to consider the present fitness of Dr McBride to continue to practise medicine. In assessing present fitness to practise it is necessary to consider the conduct of Dr McBride over the intervening years up to the present time to determine whether, since the episodes of proven misconduct, he has retrieved his good character... "

It is now well established that a denial of procedural fairness involves legal error. See Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 166 at 186.

The Doctor contends that he was denied procedural fairness because the Tribunal unfairly took into account to his detriment its findings that "his evidence demonstrated internal contradictions, inconsistencies, inventions, evasions and falsehoods." (Overview 19) These and related findings were contained in Book 7 published on 19 February, 1993. The Doctor did not allege that those findings were made in circumstances involving a denial of procedural fairness. What is challenged is the use later made by the Tribunal of those findings in coming to its ultimate conclusions and orders on 30 July 1993.

On 5 April 1993 the Tribunal heard argument as to the use which could be made of the finding that the practitioner had given false evidence in the course of the Inquiry. It gave a tentative ruling that it would adopt the following approach to the questions that remained for its consideration:

"1. To determine the question whether, on the basis of its findings on the Particulars and after taking into account the submissions for and against Dr McBride on the question of character, it has been proved to the Tribunal's satisfaction that he was not of good character in the context of fitness to practise medicine AT THE MATERIAL TIMES set out in the Particulars.

2. If the answer to this question is no, then that is the end of the matter and a proper course would be for the Tribunal to make the appropriate determination in each complaint ie complaint not proved.

3. If on the other hand the answer to the question is yes, then the proper course of the Tribunal to follow would be for it to consider whether AT THE DATE OF THE COMPLAINT the evidence overall established to the Tribunal's satisfaction that there had been no reformation of character and accordingly Dr McBride was still not of good character in the context of fitness to practise. Depending on the answer to this question the determination of the Tribunal in each complaint would be either complaint proved or not proved.

4. It follows that the finding of the Tribunal that in certain respects "the practitioner deliberately gave false evidence in the Inquiry" and "lacked candour in the evidence he gave before the Tribunal"... are not relevant factors to be taken into account by the Tribunal in determining WHETHER THE COMPLAINTS ARE PARTICULARISED have been proved." (emphasis supplied)

After further argument the Tribunal adopted its tentative ruling. On 6 April the Complainant sought leave to add additional particulars relating to the falsity of the Doctor's evidence and alternatively requested the Tribunal to deem a referred complaint under CL5(2) of Schedule 4 of the Act. On 31 May the Tribunal refused leave to amend and declined to deem additional complaints because "'it would be a breach of the rules of natural justice for the Tribunal to accede to the application of the Complainant". Following the decision of this Court in Bannister v Walton on 4 June 1993 senior counsel for the Complainant sought to challenge the correctness of the Tribunal's ruling. The Tribunal by its judicial member ruled in the final decision that a finding that a party has lied could not be used as proof of a complaint in which it was not alleged "as opposed to determining what protective orders might be made once proof of the complaint has been established". The Tribunal said:

"It was submitted by counsel for the practitioner that when Mahoney JA proceeded to consider the use which may be made of a finding, properly made, that a party has lied, he was addressing the use which could be made of such a finding in connection with determining what was an appropriate protective order and not whether a proof of the complaint was established. The Tribunal considers this submission to be correct and now for the second time confirms the correctness of its tentative ruling and indicates that the Tribunal's inquiry into and determination of the complaints has proceeded in accordance with this ruling."

The Tribunal later referred to the course of evasion and deception adopted by the Doctor to avoid accountability for his fraudulent conduct which had continued up to and during the course of the Inquiry. (9.6) It posed for itself the question whether "AT THE TIME OF THE HEARING... Dr McBride suffered from such a defect of character as to make him unfit to be held out as a registered medical practitioner" (emphasis supplied). It said that whether a finding of proven misconduct should be followed by a finding that the practitioner IS NOT OF GOOD CHARACTER, depends on "whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner." (11 and 12)

In its ultimate conclusions the Tribunal stated that it had reached the unanimous view "that the particulars found proven in Complaints 9 and 10 establish to its comfortable satisfaction that Dr McBride IS NOT OF GOOD CHARACTER in the context of fitness to practise medicine" (20) (emphasis supplied). It referred to the Doctor's behaviour since the publications including his conduct before the Gibbs Inquiry and before the Tribunal and found that this

again demonstrated a trait of dishonesty.(20) It said: "Although the proven misconduct occurred some eight years prior to the lodgment of the Complaints, the Tribunal is required to consider the PRESENT FITNESS of Dr McBride to continue to practise medicine. In assessing present fitness to practise it is necessary to consider the conduct of Dr McBride over the intervening years up to the present time to determine whether, since the episodes of proven misconduct, HE HAS RETRIEVED HIS GOOD CHARACTER." (21) (emphasis supplied)

The majority again referred to the Doctor's failure to give honest and candid evidence to the Tribunal and concluded "that in the light of the findings and the conclusion reached in relation to Dr McBride's lack of good character public confidence in the integrity of the profession would be seriously undermined if he were to remain a member of the profession." (23)

Understandably Mr Sackar QC complained to this Court that the Tribunal, having ruled on 6 April and 31 May that its finding that the Doctor had deliberately given false evidence before it would not be taken into account in determining whether the Complaints as particularised had been proved, nevertheless took it into account for this very purpose. If nothing more appeared the appeal on this point would have to be allowed. However more does appear.

In its interim and final rulings the Tribunal overlooked the fact that Complaints 9 and 10 were complaints that the Doctor "is not of good character" because of the scientific fraud particularised. It had to consider the Doctor's character at the time of its decision. It could consider whether he was not of good character in 1982 and 1983 (Ruling of 6 April paral) but an adverse finding could not alone be determinative. It could also consider whether at the date of the complaint in 1989 the Doctor was still not of good character (para3). However that also was only relevant as a step to a conclusion as to his present character in 1993. The real error was in para4 when the Tribunal ruled that its finding could not be taken into account in determining whether present lack of lack of good character had been proved.

Complaints 9 and 10 as particularised did not refer to the Doctor's deliberately false evidence before the Tribunal. If the scientific fraud case as particularised had failed or as proved was not sufficiently serious to warrant removal from the Register the Complainant could not have relied upon the false evidence finding as misconduct which itself warranted removal or elevated the scientific fraud proved above its intrinsic seriousness.

The complaints raised the Doctor's present lack of good character. They did not particularise his conduct when challenged by his co workers, when dealing with the Research Advisory Committee, in connection with the press release by Foundation 41, or before the Gibbs Inquiry. However these matters were litigated and there has been, and could be, no challenge for lack of procedural fairness to the relevant findings or the use made of them. The finding about the Doctor's evidence to the Tribunal was equally relevant and completed the history of his subsequent conduct in relation to the scientific fraud. All this conduct was relevant in considering whether the scientific fraud was an isolated episode and whether any earlier lack of good character had been redeemed.

The Tribunal, at a later stage in its final decision, posed for itself the question whether "AT THE TIME OF HEARING (the Doctor) suffered from such a defect of character as to make him unfit to be held out as a registered medical practitioner" (11). The Tribunal may only have been considering what protective order should be made and not whether the complaints had been made out.

However a little later it stated that "whether a finding of proven misconduct should be followed by a finding that the practitioner is not of good character" required consideration of a number of issues (11). It is clear that by this stage the Tribunal had come to a correct view of the issue which made the Doctor's conduct before the Tribunal relevant to its determination of the complaints. This was confirmed by its finding that the Doctor "is" not of good character (20) which it reached after considering his later conduct (20). It examined this "up to the present time to determine whether since the episodes of proven misconduct he has retrieved his good character" (21).

In these circumstances it seems to me that the Tribunal's error in taking the finding into account, contrary to its earlier rulings, in substance merely cancelled or corrected the errors in those rulings. The fact is that the Tribunal was both entitled and bound to take that finding into account when considering the Doctor's present character. In the end the Tribunal used the finding for a purpose lawfully available to it.

It is well established that a decision will not necessarily be set aside on appeal for error of law. The error must be material and such as to vitiate the decision appealed from. See Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 166 at 177 and the cases there cited to which may be added BTR v Westinghouse Brake Co (1992) FCR 246 at 253 ad 254. In my opinion this principle is applicable in the present case and warrants the dismissal of this part of the appeal. The Doctor has established an error of law because of the apparent denial of procedural fairness but it was ultimately immaterial and did not invalidate the Tribunal's conclusion that at the date of its decision he was not of good character.

The finding of deliberate lying was not directly challenged on the appeal. However it would not be right to reject the argument of procedural unfairness without considering whether the finding was itself vitiated by procedural unfairness. Book 7 comprised the submissions of both parties on the scientific fraud complaints (163 pages), an overview on the credibility of the witnesses and related matters (39 pages) and the Tribunal's findings and conclusions (13 pages). The Complainant in its submissions mounted a major attack on the Doctor's credibility ("Doctor McBride must be assessed as having no credibility and his evidence disregarded save where it is independently corroborated" and "... his account is an invention" Submission 4). The Complainant submitted that the Doctor had given false evidence to the Tribunal ("... a further example of the practitioner misleading the Tribunal... The references to controls were an invention" 9), ("the practitioner has offered the Tribunal an untrue explanation" 10), ("It is submitted that the assertion... is a further invention and another example of the practitioner's total lack of concern for the truth" (19 and 20), ("... the conduct is serious and is... exacerbated by Dr McBride's testimony, which must also be false." (23)).

The Doctor was on notice that his credibility was under challenge and that the Complainant was alleging that he had given deliberately false evidence to the Tribunal. Its findings were published on 19 February 1993 and the substantive hearing was not resumed until 31 May. Although Smith v NSW Bar Association (1992) 176 CLR 256 had been reported the Doctor neither challenged the finding for procedural unfairness nor applied for leave to give further evidence. He was also on notice that if the complaints were established the Tribunal might take the finding into account in considering what orders should be made.

In my opinion the decision in Smith vy NSW Bar Association does not require this appeal to be upheld. The first difficulty in Smith "s Case was that he had been charged with isolated misconduct which was not necessarily very serious and by itself may not have warranted disbarment. This Court found that in attempting to exculpate himself he committed perjury which was far more serious and did warrant disbarment. The second difficulty was that he had had no notice of this charge before the finding was made. The first point is made clear by the majority when they said at 268:

"The mere rejection of evidence... (cannot) justify a consequence over and above that which properly attaches to the matter charged."

The second point was made clear when they said at 269: "Considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made. In the first hearing... no allegation of deliberately lying was made against the appellant before the adverse finding was made."

In the present case the Doctor did have notice that such allegations were being made, and they were directly relevant to his present character. The case in this respect is covered by Bannister v Walton (1993) 30 NSWLR 699. At 729 Mahoney JA said:

".,.. the question whether Dr Bannister lied to the Tribunal was.,... a live issue... the existence of which was apparent to Dr Bannister. The Tribunal found that he had been guilty of deliberate deceit in charging and,... when he said the overcharging was due to accident... he was not to be accepted... these (findings) involve...., a finding that Dr Bannister deliberately lied to the Tribunal. It was 'the persistence of such deceitful conduct' which the Tribunal took into account in concluding that there was 'within his character a marked degree of moral turpitude' and that 'he is not of good character'.

With respect, I am of the opinion that what was held in the Smith Case does not make such a finding or such a use of it inconsistent with principle. It was not, in my opinion, necessary for the Tribunal to amend the charges to allege lying or some analogous matter before it could make such a finding and such a use of it in the present case".

In my opinion therefore the appeal against the finding that the Doctor was not a person of good character fails.

The remaining issue in the appeal concerns the Doctor's challenge to the order for his removal from the Register as unnecessarily severe in all the circumstances. Reliance was placed both on the Doctor's exemplary record, with one solitary and minor exception, in the care and treatment of his patients, and his contribution to public welfare in the discovery that thalidomide was a teratogen. The Court was invited in substance to prefer the minority opinion of Professor Tracy.

I find myself unable to take this course. Parliament made a legislative judgment that persons who were not of good character should not become registered as medical practitioners. It also provided that lack of good character should be a ground of complaint against a registered medical practitioner. In these circumstances I have difficulty in seeing how the Tribunal could properly decide to leave a medical practitioner on the Register after it had found that at the time of its decision he or she was not a person of good character in the context of fitness to practise medicine.

The Doctor's lack of good character was not manifested in his personal and private life. It involved his activities in medical research, his dealings with the medical scientific community, his colleagues, the media, the public, the Gibbs Inquiry, the courts in the USA and the Tribunal. His status as a registered medical practitioner was relevant and important in all these aspects and relationships.

Professor Tracy joined in the unanimous decision of the Tribunal that "Dr McBride is not of good character in the context of fitness to practise medicine" (20). Again, in his minority opinion, he referred to the scientific fraud and the Doctor's later conduct and said:

"This demonstrates a sustained episode of misconduct which reflects adversely on Dr McBride's underlying character." (24)

With respect, I can see no basis for concluding that the majority made any mistake in the exercise of the Tribunal's powers under s32R. If the order for removal was not inevitable, as I think it probably was, in the light of the finding of bad character, it was at least appropriate. Compare Bannister v Walton (above). I agree with the orders proposed by Powell JA.

Powell JA This is an appeal from the determinations and orders made by the Medical Tribunal of New South Wales ("the Tribunal') following an inquiry by it into the subject matter of a complaint, originally lodged by the Respondent, the Director of the Complaints Unit, of the New South Wales Department of Health, with the New South Wales Medical Board ("the Board") which complaint had thereafter been referred by the Board to the Tribunal for inquiry and determination pursuant to the provisions of s31(1)(a) of the Medical Practitioners Act 1938.

Although - for technical reasons upon which it is not necessary to enter - it is not strictly correct to describe what happened after the lodging of the complaint as involving an amendment of the original complaint, the substance of what occurred is that the original complaint was amended. For that reason, it is unnecessary for me to describe the content of the original complaint, it being sufficient, for present purposes, to describe the complaint in the form which it ultimately took.

The complaint, as so "amended" comprised some sixteen complaints, which complaints might readily be divided into two groups, they being:

1. what have been described "the obstetric complaints" - complaints 1 7, 8A, 8B - which complaints were to the effect that the Appellant had been guilty of professional misconduct within the meaning of subs28(1)(d) of the Medical Practitioners Act 1938 ("the Act") in the course of his practice as an obstetrician and gynaecologist;

2. what have been described as the "scientific fraud complaints" complaints 9-15 - which complaints were to the effect that the Appellant was not of good character in that he, in relation to medical research, made, published or caused to be published, statements which were false and misleading.

However, while it may be convenient - in the sense that it provides a broad general indication of the nature of the complaints involved - so to describe the complaints made by the Respondent, that description provides no real indication of the nature and extent of the inquiry which, as the result of the lodging of the original complaint, the Tribunal was obliged to embark upon. A better understanding of the nature and extent of that inquiry might be obtained when I record:

1. that, as described by the Tribunal in its findings of fact, the inquiry into the "obstetric complaints" involved "the extensive retrospective audit of (the Appellant's) practice spanning 10 years at the three hospitals", that "retrospective audit" engaging the attention of the Tribunal from November 1989 until February 1991; and

2. that "the scientific fraud complaints" involved the Tribunal considering experiments conducted, or said to have been conducted, by, or under the direction of, the Appellant in 1979 ("the Debendox experiment") and 1980 ("the Hyoscine experiment"), articles submitted to a scientific journal in 1982 and 1983, as well as evidence given by the Appellant to a committee - apparently of the United States Food and Drug Administration - in 1980 and evidence given on four occasions - 1980, 1983, 1988 (2 occasions) - ill one or other of the United States District Courts against the manufacturers of pharmaceutical products, that evidence apparently being in relation to the carrying out, and the results, of "the Debendox experiment" - this part of the inquiry is said to have occupied the attention of the Tribunal from February until July 1991.

Some indication of why it was that the inquiry into "the obstetric complaints" involved such an extensive audit as has been described by the Tribunal, and why so much of the Tribunal's time was devoted to the carrying out of that part of the inquiry, is given by the following - albeit shorthand - version of those complaints. They were as follows:

that the Appellant had been guilty of professional misconduct in the course of his practice as an obstetrician and gynaecologist at the Royal Hospital for Women, Paddington between the years 1983 and 1988 inclusive, particulars of that conduct being said to be

(a) that the proportion of first births delivered by caesarean section amongst his private patients was 53.85% which was grossly in excess of the proportion of caesarean sections of his peers during the same period; and

(b) that there was no clinical justification for caesarean section in respect of eight nominated patients;

that the Appellant had been guilty of professional misconduct in the course of his treatment of a nominated patient in November 1983 three particulars of the alleged misconduct being given;

that the Appellant had been guilty of professional misconduct in his treatment of another nominated patient in February 1984 - one particular of that alleged misconduct being given;

that the Appellant had been guilty of professional misconduct in relation to his treatment of yet another nominated patient in March 1984 - three particulars of the alleged misconduct being given;

that the Appellant had been guilty of professional misconduct in relation to yet another nominated patient in March 1984 - three particulars of the alleged misconduct being given;

that the Appellant had been guilty of professional misconduct in the course of his treatment of yet another nominated patient in July 1987 - five particulars of such misconduct being given;

that the Appellant had been guilty of professional misconduct in the course of his practice as an obstetrician and gynaecologist at the Womens Hospital, Crown Street between September 1979 and March 1983 in that:

(a) the proportion of first births delivered by caesarean section amongst his private patients was 36.7% which was grossly in excess of the proportion of caesarean sections of his peers during the same period; and

(b) there was no clinical justification for caesarean section in 20 nominated cases of first births;

8A. that the Appellant had been guilty of professional misconduct in the course of his practice as an obstetrician and gynaecologist at St George Hospital between the years 1986 and 1988 in that

(a) he stated diagnoses of placenta praevia in the absence of apparent clinical signs of that condition;

(b) he diagnosed placenta praevia in 20% of his patients but that condition occurred in less than 1% of all pregnancies in New South Wales at that time;

(c) in eight nominated cases the diagnosis of placenta praevia was not supported by clinical signs of the condition;

8B. that the Appellant had been guilty of professional misconduct in the course of his practice as an obstetrician and gynaecologist at St George Hospital between the years 1986 and 1988 in that

(a) the proportion of first births delivered by caesarean section among his private patients was 65% which was grossly in excess of the proportion of caesarean sections of his peers during the same period; and

(b) there was no clinical justification for caesarean section in ten nominated cases.

Before passing on, the following unusual features of the complaint, insofar as it related to "the obstetric complaints", should be noted:

the complaints were made by the Respondent without there having first been any complaint made by any patient of the Appellant to the Complaints Unit;

access to the hospital records concerning the various patients at the various hospitals was obtained by the Respondent, without the knowledge or consent of any of the patients, but pursuant to an authority issued by the Secretary of the Department of Health in purported reliance upon the provisions of s11 of the Public Hospitals Act 1929;

as originally framed, what ultimately became complaints 1, 7, 8A and 8B contained no more extensive particulars than the incidence of caesarean sections among the total number of deliveries performed by the Appellant, or the incidence of diagnoses of placenta praevia made by the Appellant, which rate of incidence in each case was alleged to be unacceptably higher than that of the Appellant's peers and was not clinically justifiable;

in relation to those complaints, the Respondent's case appears to have been, either, that the Appellant had no honest belief that the circumstances justified the performance of a caesarean section, or that the patient's condition was one of placenta praevia, as the case may be, or, alternatively, that, if he did have an honest belief in the diagnoses which he then made, he made then recklessly and indifferently to the truth, and had no reasonable clinical foundation for his belief in such diagnoses.

despite the matters to which I have referred in 3 and 4 above, neither the evidence as to the cases particularised nor the expert evidence as to matters of practice would seem to have supported the Respondent's case. That this was so is indicated from the following extracts from that part of the Tribunal's Judgment which dealt with "the pattern of practice':-

"The complaints were made in composite form because it was alleged Dr McBride's practice at the three hospitals demonstrated a pattern of practice or general course of conduct in relation to the performance of caesarean sections and diagnoses of placenta praevia which demonstrated a departure from proper standards of practice.

The Tribunal has carried out analyses of Dr McBride's practice at these three hospitals in managing the delivery of his primigravida private patients based on its findings in the individual case managements... These analyses are demonstrated in tables and figures set out below.

For its part the Tribunal cannot discern any pattern of practice or general course of conduct demonstrating idiosyncratic or eccentric case management, that he was 'out of step' with his medical peers (senior obstetricians practicing at major teaching and training hospitals). Dr McBride's case managements at each hospital fell well within the middle of the road or mainstream clinical practice; an analysis of the cumulative data for the three hospitals shows that in approximately 70% of the cases his management was middle of the road.

The cumulative clinical profile of primary indications shows that failure to progress was the primary indication in 33% of the cases (the highest percentage), with indications of cephalopelvic disproportion and foetal distress at the lower end of the spectrum (each 10%). An interesting point to note is that the indication of 'failure to progress' is the indication which was subjected to the closest scrutiny by testing Dr McBride's subjective evidence with the objective evidence of the hospital labour ward nursing notes and partograms. Indications of placenta praevia (15.4%) is at the lower end of the spectrum of management indications. There is respectable medical opinion that it is better to over diagnose placenta praevia than under diagnose the condition.

The cumulative profile appears to show a random pattern of clinical indications from which it is not possible to draw any firm conclusions. Certainly, there appears to be no sign of a 'smoking gun' to indicate a departure from proper standards of practice.

Some indication of why it was that the inquiry into "the scientific fraud complaints", in its turn, occupied so much of the Tribunal's time is given by the following - also shorthand - version of those complaints. They were as follows:

that the Appellant was not of good character in that he had, in relation to medical research, made, published, or caused to be published, statements which were false and misleading, those statements being contained in an article entitled "Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo' which was published in the Australian Journal of Biological Science, that article was said to be false and misleading in some fifteen respects;

that the Appellant was not of good character in that he had, in relation to medical research, made, published, or caused to be published, statements which were false and misleading which statements were contained in an article entitled Note on the Paper Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo' which was published in the Australian Journal of Biological Science. That article was said to be false and misleading in two material respects. In the light of matters to which it will be necessary later to refer, it is perhaps convenient to note that one of those respects was said to be as follows:

'b. The first paragraph of the Note states that the experiment described in the 1982 article was repeated because of 'difficulty in measuring rabbit water intake accurately'. This statement is misleading in that a significant reason for repeating the experiment was that the data published did not correspond in the significant respects with the recollection of the named co authors of (the Appellant) nor with the contemporaneous records of the experiment."

that the Appellant was not of good character in that he had, in relation to medical research made, published, or caused to be published, statements which were false and misleading, those statements being said to be contained in evidence given by him before the "Fertility and Material Health Drugs Advisory Committee" of the Public Health Service Food and Drug Administration of the United States, that he had undertaken ("the Debendox experiment") which statement, so the complaint asserted, was false in that the experiment did not take place;

that the Appellant was not of good character in that he had, in relation to medical research made, published, or caused to be published, statements which were false and misleading, which statements were said to be contained in a deposition given by the Appellant in David Mekdeci v Merrell National Laboratories in the United States District Court in which deposition he described "the Debendox experiment", which experiment, so the complaint asserted, did not take place;

that the Appellant was not of good character in that, in relation to medical research, he made, published, or caused to be published, statements which were false and misleading, such statements being said to be contained in a deposition which he gave in In Re Richardson Merrell Inc Bendecton Products Liability Litigation relating to 'the Debendox experiment", and which evidence was said to be false and misleading, first, in that 'the Debendox experiment,' so it was asserted, did not take place, and, second, in that the evidence which he gave as to the description of the experiment varied in four respects from the evidence given by him in David Mekdeci v Merrell Laboratories:

that the Appellant was not of good character in that he had, in relation to medical research, made, published, or caused to be published, statements which were false and misleading, which statements were said to be contained in evidence on oath given by the Appellant in the matter of Lynn Annette Hill v Merrell Dow Pharmaceutical Inc in relation to "the Debendox experiment', which evidence, so it was asserted, was false in that the experiment did not take place;

that the Appellant was not of good character in that he had, in relation to medical research, made, published, or caused to be published, statements which were false and misleading, which statements were said to be contained in evidence on oath given by the Appellant in the matter of Nicholas Hagaman v Merrell Dow Pharmaceuticals Inc in relation to "the Debendox experiment", and which evidence was said to be false and misleading in the same respects as had been particularised in relation to the deposition given by the Appellant in In re Richardson Merrell Inc Bendecton Products Liability Litigation.

In order that these various allegations might be put in some form of chronological order, I record the following:

"the Debendox experiment" is said to have taken place between April and November 1979;

the evidence which the Appellant gave to the Committee of the Food and Drug Administration was given in September 1980;

the deposition which the Appellant gave in David Meckdeci v Merrell National Laboratories was given in November 1980;

the article "Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo" was published in 1982;

the further article "Note on the Paper 'Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo" was published in 1983;

the deposition given by the Appellant in In Re Richardson Merrell Inc Bendecton Products Liability Litigation was given in December 1983;

the evidence given by the Appellant in Lynn Annette Hill v Merrell Dow Pharmaceuticals Inc was given in May 1988;

the evidence given by the Appellant in Nicholas Hagaman v Merrell Dow Pharmaceuticals Inc was given in May 1988;

It will thus be apparent that the various actions relied upon in the complaint to sustain a finding, or series of findings, that the Appellant was not of good character, if found to be established, were actions involving substantial, repeated and deliberate, scientific fraud on the part of the Appellant carried out over an extended period of years.

The findings which the Tribunal made in relation to "the obstetric complaints" are sufficiently recorded in the following summary of findings with which it concluded its analysis of the evidence tendered in respect of them.

there were eight cases particularised and, in each case, the Tribunal found that the particulars of complaint had not been proved;

there was one case particularised and, in that case, the Tribunal found that the three particulars of complaint had not been proved;

there was one case particularised and, in that case, the Tribunal found that the particular of complaint had not been proved;

there was one case particularised and, in that case, the Tribunal found that the three particulars of complaint had not been proved;

there was one case particularised and, in that case, the Tribunal found that the three particulars of complaint had not been proved;

there was one case particularised and, in that case, the Tribunal found that, of the five particulars of complaint alleged, four (particulars (a) to (d)) had not been proved and that one - particular (e) "in July 1987 the practitioner treated patient M and left the hospital without making proper arrangements for the further care of the patient" had been proved in part, in respect of which finding the Tribunal saw fit to repeat the comment made by it earlier in its reasons:

"In the background of the extensive retrospective audit of Dr McBride's practice, spanning 10 years at 3 hospitals, proof of the particular should be viewed as a minor and isolated lapse and out of character with his normal practice. Ordinarily a complaint of this kind, if it were to be brought against a practitioner, would be referred to the Professional Standards Committee for inquiry and determination and not to the Medical Tribunal."

there were 20 cases particularised and, in each of those cases, the Tribunal found that the particulars of complaint had not been proved. 8A. there were 8 cases particularised and, in each of those cases, the Tribunal found that the particulars of complaint had not been proved. 8B. there were 10 cases particularised and, in each of those cases, the Tribunal found that the particulars of complaint had not been proved.

These findings on the part of the Tribunal were said, in each case, to have been unanimous.

In the result, therefore, this series of complaints, to establish which so much time and effort and, no doubt, expense, had been directed, was revealed, upon examination, to be almost totally devoid of substance.

No such happy outcome, from the point of view of the Appellant, was to flow from the Tribunal's examination of the "scientific fraud complaints".

However, before proceeding to record what were the Tribunal's findings in relation to the "scientific fraud complaints", the fact that one of the attacks which is made, in this Appeal, upon the Tribunal's finding that the Appellant was "not of good character" is that, so it is alleged, he was deprived of "procedural fairness" in that, in coming to its determination, the Tribunal relied upon matters which were not the subject of particulars in support of the various charges of want of good character, suggest that some preliminary comment is here called for. In this regard, it is to be noted that it is asserted that, in coming to its conclusion, the Tribunal relied upon the following particular matters:

1. the Appellant's response to his junior colleagues in relation to the first article referred to in complaint No 9;

2. the Appellant's response to his senior research colleagues on the Research Advisory Committee in relation to the same article;

3. the Appellant's participation in a distortion of the truth in the publication of a press release which followed the broadcasting by the Australian Broadcasting Corporation in its "The Science Show" programme, charges of scientific fraud involving the Appellant;

4. the Appellant's conduct before the inquiry, in 1988, by a committee chaired by Sir Harry Gibbs ("the Gibbs inquiry") into the charges of alleged scientific fraud which charges the Appellant denied; and

If the nature of the charges which are set out above has not already made it clear, it should be made clear, first, that the burden of those charges was that the Appellant had indulged in substantial, repeated and deliberate acts of scientific fraud; second, that, at least in part, the evidence upon which the Respondent sought to rely to support some, at least, of those charges was the evidence of the Appellant's junior colleagues in relation to the conduct of the alleged experiments and the results alleged to have been obtained therefrom; third, that, at least in part, the evidence upon which the Respondent sought to rely to support at least one of those charges was the evidence of the Appellant's junior colleagues and of the Appellant's senior research colleagues as to the circumstances in which the Note referred to in complaint No 10 was prepared and submitted for publication; fourth, that, in consequence, a vigorous and sustained attack upon the Appellant's credibility as a witness was made before the Tribunal, that attack being based in part upon the Appellant's response to his junior colleagues, his response to his senior research colleagues, his participation in the publication of the press release, and his conduct before, and evidence given to, the Gibbs inquiry.

That the Appellant and his advisers appear to have understood that this was the way in which the Respondent's case was to be, and was in fact, conducted before the Tribunal seems to be made clear by the written statements - both of the Appellant and others - submitted prior to the commencement of the hearing before the Tribunal, the evidence tendered on behalf of the Appellant at the hearing before the Tribunal and the written submissions tendered to the Tribunal on behalf of the Appellant. In the light of the particular matters of which a complaint is now made on behalf of the Appellant, it is not without point to note that the whole transcript of the Appellant's evidence before the Gibbs inquiry was admitted into evidence, in his own case, before the Tribunal as Exhibit "23"

(Transcript at 7755) as also were some, at least, of the Appellant's written submissions to that inquiry (Transcript at 7593, 7756).

It is hardly surprising, in the light of the matters which I have just set out, that, as part the process of its reasoning which led to the findings to which I will later refer, the Tribunal carried out an extended examination of the evidence of the critical witnesses, the results of which were included in its Judgment on the "scientific fraud complaints" under the heading "The Credibility of the Core Witnesses". At the outset of that portion of its Judgment, the Tribunal dealt with the credit of the Appellant as a witness. In this regard it recorded (inter alia) the following:

"The Tribunal noted that Dr McBride was cross examined vigorously over many weeks on a wide range of topics and about matters many years in the past. The thrust of the cross examination was directed to suggesting that Dr McBride was not a witness whose word could be believed on his oath. The Tribunal accepts that it was an ordeal and the Tribunal has been mindful that a witness under stress in the witness box is not always able to do justice to his case. That said, Dr McBride did not impress as an honest witness doing his best to tell the truth on the issues.

His testimony, and his manner in giving it, left the Tribunal with a deep sense of unease.

His answers at times were evasive and unresponsive. The frequency of these occurrences and the inappropriateness of his answers at many points in his evidence led to the Tribunal coming to the firm view that he was deliberately being evasive as a tactic to avoid the issue raised by the cross examiner. It would be vain to attempt to relate the many instances when this occurred during his cross examination which extended over many weeks. Some examples, however, are illuminating and help to give the flavour.

1. Senior counsel for the complainant drew Dr McBride's attention to the press release and sought to question him as to his involvement with its content. It is understandable that he should do so in the light of statements made by Dr McBride at this inquiry which appear to be inconsistent with assertions attributed to Dr McBride in the press release.

(After an extended portion from the Transcript the Judgment continued)

Dr McBride's concession to the Tribunal (albeit be it long drawn out) that the statements of opinion and statements of the fact attributed to him in the press release were accurate should be compared with his evidence before the Gibbs inquiry on the point. A Transcript of his evidence before the Gibbs inquiry was admitted into evidence in his own case as Exhibit 23. The relevant portion of the Transcript is illuminating of the similar obfuscation generated by the answers and is reproduced (with emphasis added): (Then after the passage from the evidence before the Gibbs inquiry, the passage of the Judgment of the Tribunal continues)

It is clear to the Tribunal that at the Gibbs inquiry and for a time before this inquiry, Dr McBride did attempt to disassociate himself from involvement in the preparation of the contents of the press release - in particular, the statements therein attributed to him. There are a number of assertions of fact and opinion attributed to Dr McBride in the press statement which are inconsistent and in some cases contradictory with statements made by him at this inquiry. For example:

The experiment was repeated so as to correct a matter which had been complained of in respect of the original experiments, namely that the dosage administered to two rabbits may not have been accurate, owing to possible leakage from the valves of their water containers (vide Book 6 Background 41).

The facts of the matter are that Professor Stapleton and Professor Watson were concerned that experimental data in relation to three rabbits had been altered as to dosage; the datum in relation to another as to weight; that no contemporaneous controls were used in the experiment; and that no satisfactory explanation had been given by Dr McBride for any of these defects. It was for these reasons that they requested Dr McBride to advise the Editor of the Journal that the table of data was to be withdrawn.

Dr McBride said he had never sought to deny or avoid the fact that there were doubts arising out of the original experiment.

This statement should be contrasted with the evidence Mr Vardy and Ms French gave of their confrontation with Dr McBride on their allegations of falsification of the date and his assertions to them that the data was in accordance 'with his notes' (Vide Book 6 Background 24, 34). The Tribunal accepts their evidence to be reliable on this point and notes that Dr McBride did not expressly challenge and deny the truthfulness of their account of the conversations.

(c) In the press release the explanation for the withdrawal of the data in Table 2 in the published article is reported in this way:

After the above paper (the article) had been published it was discovered that because of difficulty in measuring rabbit's water intake accurately with the containers... the amount ingested by the rabbits was less than as stated.

The plain facts are Dr McBride realised long before the publication of the article - indeed even before he wrote it in its final form - that the water consumption of the rabbits could not be measured accurately and the experimental data of water consumption were only 'rough estimates'. His evidence at this inquiry is that he revised the drafts to alter the data of the doses of three rabbits to correspond with what he claimed was a mean dose of the total group of treated rabbits because of his awareness of the inaccuracy of the water consumption measurement. The assertion in the note that the problem was discovered after the publication of the article is plainly false and to repeat the assertion in the press release was to repeat the falsehood.

Dr McBride said he had always been quite forthcoming as to the fact that he made the alterations to the two readings as a result of an inquiry from the Editor of the Journal... he therefore took the average of the water intake to the other four rabbits and substituted it for the two seemingly high readings. Dr McBride reiterated that Mr Vardy had at all times been aware of this action.....

The reference to the 'Editor of the Journal' is a reference to a referee who reviewed the draft TAP article. The plain facts of the matter are (and this is not disputed by Dr McBride) that he altered the data reading in relation to the dosages of three rabbits not two, and altered the weight of another rabbit. The assertion that Mr Vardy had at all times been aware of this is plainly false.

It was routine laboratory practice, having photographed the embryos, to automatically dissect them and Dr McBride had understood that Mr Vardy had undertaken this routine.

Mr Vardy gave evidence which the Tribunal accepts that he never carried out this procedure and was not qualified to do so."

After giving, and commenting upon, other examples of the attitudes of the Appellant reflected by his evidence, the Tribunal, in its Judgment, concluded its assessment of the Appellant's credibility of the Appellant as a witness as follows:

"The complainant's attack on Dr McBride's credit as detailed in the Written Submissions has force. His evidence demonstrated internal contradictions, inconsistencies, inventions, evasions and falsehoods. The Tribunal found him to be an unreliable witness whenever his interests were at stake on a disputed issue. Accordingly, the Tribunal kept in the forefront of its mind that on any disputed issue it would be prudent to look for corroboration of his testimony on material matters.

Having concluded its examination, and assessment, of the evidence of the various witnesses in relation to the "scientific fraud complaints", the Tribunal then proceeded to record its findings. At the outset of that part of its Judgment, the Tribunal recorded:

"The findings of the Tribunal at this stage of the inquiry are confined to the twenty four particulars of complaint in support of the seven complaints. The Tribunal has received Written Submissions from the parties on the question of good character and the application of s28(1)(g) of the Act.

The ultimate findings of the Tribunal in relation to the question of character raised in the complaints have not been considered at this stage of the proceedings. It was agreed to proceed on the basis that the parties should have the opportunity to consider the findings of the Tribunal in relation to the particulars with leave to address the Tribunal on the appropriate determinations and orders in the complaints in the light of its findings on the particulars.

In the Chapter "Overview" the Tribunal has dealt with the critical matters which lie at the heart of the inquiry into these complaints and indicated the approach taken by it in its fact finding role. In the enunciation of its specific findings which follow, the Tribunal has added a comment whenever appropriate."

Rather than set out in extended form the record of the Tribunal's findings, I record those findings in summary form below and add a note as to any comment by the Tribunal in relation to any particular finding.

(a) The Tribunal found this particular not proved, its comment being:

"The evidence does not establish to the Tribunal's satisfaction that the 200 (microgram) line of data was not produced in a continuing experiment as described by Dr McBride in his evidence."

(b) The Tribunal found this particular not proved, its comment being:

"The evidence does not establish to the Tribunal's satisfaction that the AJBS Figure | was not a photograph of an embryo produced in the course of the '200 (microgram) experiment' described in the article."

(c) The Tribunal found this particular not proved, its comment being:

"The evidence does not establish to the Tribunal's satisfaction that Dr McBride included the figure in the Article with the intention to deceive or mislead. On the evidence presented the Tribunal accepts the Respondent's submission to be correct that Dr McBride, at worse, was guilty of an innocent mistake."

(d) The Tribunal found particulars (i) and (ii) proved, its comment being:

"Dr McBride admitted that no contemporaneous controls were used and that the statement in (ii) in capable of suggesting that contemporaneous controls were used and is therefore misleading but he claimed it was not materially so. In the view of the Tribunal the statement in (ii) in the context in which it appears can only be read as meaning 'eight contemporaneous control does' and was intended by Dr McBride that it should be so read by any reader of the article, in particular any referee reviewing the Article for publication. The Tribunal finds the statement was misleading in a material respect and Dr McBride intended that it mislead.

(e) The Tribunal found this particular proved, its comment being:

"Dr McBride admitted the statement was false and misleading but claimed it was neither materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made with reckless indifference as to whether it was true.

(f) The Tribunal found this particular proved, its comment being:

"Dr McBride admits that if some rabbits received the drug by intraperitoneal injection (which he does not know and admit) the statement was false and misleading but says it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter but was not made with intention to deceive or mislead."

(g) The Tribunal found this particular proved, its comment being:

"Dr McBride denies that no more than five rabbits given injections became pregnant. The Tribunal accepts Mr Vardy's evidence and rejects Dr McBride's evidence as being unreliable on this issue.

(h) The Tribunal found this particular proved, its comment being:

"Dr McBride admits that if rabbits were dosed by injection on the days particularised then the statement was false and misleading but claims that it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made with reckless indifference as to whether it was true.

(i) The Tribunal found this particular proved, its comment being:

"Dr McBride admits that if injections were not given as stated in the Article, then the statement was false and misleading but says it was not intentionally or materially so. The Tribunal finds that the statement dealt with a material matter and that it was made with reckless indifference as to whether it was true."

(j) The Tribunal found that particulars (i) to (iv) were proved, its comment being:

"Dr McBride does not admit the statements were false or misleading but says that if they were they were not intentionally or materially so. The Tribunal finds that the statements dealt with a material matter and that (sic) were made with reckless indifference as to whether they were true."

(k) The Tribunal found particular k(i) proved, its comment being:

"Dr McBride claims that rabbits 15 and 16 were part of the experiment and were treated by Dr Langman at the University of Virginia. The Tribunal finds that the experimental data in relation to these two rabbits were not obtained from Dr Langman, the data in relation to these two matters are spurious.

It is unnecessary to make a finding in relation to particular k(ii) in view of finding k(i) above. The Tribunal notes that on the premise that the data in relation to rabbits No 15 and 16 were part of an experiment conducted by Dr Langman, Dr McBride admits the relevant statements were false and misleading."

(1) The Tribunal found this particular proved, its comment being:

"Dr McBride admits that insofar as the Article suggests that rabbit 9 received an average daily dose of exactly 495 micrograms per kilogram, the statement is misleading but does not admit the rabbit received a daily dosage of 895 micrograms per kilogram, rather this was a rough approximation of the dosage and an inaccurate one. Moreover he claims the statement did not deal with a material matter and was not made with the intention that it be false and misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true."

(m) The Tribunal found this particular proved, its comment being:

"Dr McBride admits the statement was false and misleading but says it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true."

(n) The Tribunal found this particular proved, its comment being:

"Dr McBride admits that insofar as the Article suggests that rabbit No 12 received an average daily dose of exactly 582 micrograms per kilogram, this statement is misleading. He admits that the laboratory notes record the rabbit received a daily dosage of 1587 micrograms per kilogram and the rabbit book and raw data record the rabbit received a daily dosage of 1582 micrograms per kilogram, but does not admit the rabbit received a daily dosage of 1587 or 1582 micrograms per kilogram. He claims these records are inaccurate estimates only. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be false and misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true.

(0) The Tribunal found this particular proved, its comment being:

"Dr McBride admits that insofar as the Article suggests that rabbit No 14 received an average daily dose of exactly 580 micrograms per kilogram, this statement is misleading. He admits that the rabbit book had raw data record the rabbit received a daily dosage of 624 micrograms per kilogram but does not admit the rabbit received a daily dosage of 624 micrograms per kilogram, he claims this is an inaccurate estimate only. Moreover, he claims the statement did not deal with a material matter and was not made with intention that it be misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true."

(a) The Tribunal found particular (a)(i) proved to the extent that the statement was misleading - particular (a)(ii) being described as more a comment than a particular of misconduct and... otiose when included with particular (a)(i)". The Tribunal's comment in relation to particular (a)(i) was

"A reader of both articles would have assumed erroneously but on reasonable grounds that the experiment described in the Note was conducted with contemporaneous controls. Dr McBride admits that there were no contemporaneous controls in the original experiment and denies that the statement was misleading. The Tribunal notes that one of the principal failings of the original experiment which was of concern to Professors Stapleton and Watson was the absence of contemporaneous controls, yet the repeat experiment was conducted without contemporaneous controls and Dr McBride's description of it in the Note implies that there were contemporaneous controls."

(b) The Tribunal found this particular proved to the extent that the statement was misleading, its comment being:

" Dr McBride claims the experiment was repeated pursuant to a resolution of the Research Advisory Committee and that a letter in a form approved by the Research Advisory Committee was forwarded to the Editor of the Journal. If the RAC did have a counselling role as asserted by Dr McBride (this is disputed by Dr Watson) - shame on them. This defence is a resort to a quibble. The Tribunal finds in the circumstances of the case Dr McBride was not absolved of the responsibility of ensuring that no statement in the Notes submitted for publication in the Journal was misleading. The Tribunal finds in terms of the particular Dr McBride 'prepared and presented for publication and article... (the Note)...' and further, that the Note contained statements which were misleading to the knowledge of Dr McBride, Dr McBride denies that it was misleading and states that the experiment was repeated because of 'difficulty in measuring water, rabbit water intake accurately'. In the view of the Tribunal the statement was misleading for the reasons given in the particular.

Dr McBride denies he is responsible for the wording of the first paragraph of the Note. This defence also resorts to a quibble. The Tribunal finds in the circumstances of the case Dr McBride was not absolved of the responsibility of ensuring that no statement in the Note submitted for publication in the Journal was misleading. Dr McBride was at all material times aware that the Editor of the Journal intended that the wording of the first paragraph of the Note would be taken from the information supplied by Dr McBride in the correspondence with him. In the view of the Tribunal Dr McBride was responsible for the preparation and presentation for publication of the Note in its published form."

While finding that the Appellant gave the evidence, or provided the deposition, in the circumstances referred to in each of the these particulars, the Tribunal found the particulars not proven upon the bases set out on at 36 and 37 of that part of its Judgment entitled "Overview", which pages contain the following (inter alia):

"The arguments put forward to support (the) submissions (that Dr McBride's evidence as to the carrying out of the experiment was false and that the car diary experimental records were a fabrication) are strong and give rise to a sense of unease as to the truth of Dr McBride's evidence on this issue. That said, the Tribunal has come to the view that it cannot be comfortably satisfied that the experiment as described by Dr McBride did not occur. "

While,for the reasons just recorded, the Tribunal found that particular (a) in each case had not been proved, it found that particulars (b)(i) to (b)(iv) proved in each case, its comment being:

"Dr McBride admits the experiment was misdescribed by him as particularised and that his evidence was accordingly false. He claims that the misdescription was not significant, did not deal with a material matter and was not made with the intention of stating a falsehood. The Tribunal finds that the misdescription was significant, did deal with a material matter and was caused by either reckless indifference as to whether the description was true or inexcusable carelessness."

Having recorded its findings, the Tribunal then proceeded to record its Conclusion on this aspect of the matter which Conclusion, after quoting (inter alia) the Appellant's counsel's statement:

"Tt may well be that Dr McBride's enthusiasm for his cause clouding his judgment." was as follows:

"The evidence establishes that Dr McBride arbitrarily misdescribed the experimental method and data and included spurious data in the preparation and publication of the Article. The Tribunal rejects the explanation offered by Dr McBride that his motive in changing the data and misdescribing the method of the experiment was because of his concern for the public welfare and the need to alert the public to the risks of hyoscine as a teratogen. The Tribunal finds the principal reason for his conduct in making deliberate changes in the data, adding false data and misdescribing the experimental method was to enhance the publishability of the article.

His actions cannot be described as falling into the area of 'sloppy science'. Dr McBride's manipulation and alteration of the data cannot be described as 'trimming' or minor corrections of data for clarity or the appropriate exclusion of 'outlier' cases or values. Rather, the evidence demonstrates Dr Bride deliberately selected and culled data with the object of excluding data non supportive of his hypothesis that hyoscine was a teratogen and only presented data supportive of the hypothesis ie an exercise in 'curve fitting' described in the evidence. This manipulation and 'curve fitting' of the data together with the fraudulent inclusion of the 'Langman' rabbits were directed towards strengthening the appearance of the experiment and providing support for the hypothesis.

Dr McBride's attempts to cloak his deception in relation to the 'Langman' rabbits by calling in aid a deceased colleague is an aggravating circumstance of a most reprehensible kind.

The cornerstone of Dr McBride's justification for misreporting the experiment (to use a kind expression) is his claim that on his 'interocular contusion test' (freely translated to mean 'it hits you between the eyes', vide Overview at 17) the results of the malformed rabbit foetuses from the first experiment followed by result of malformed rabbit foetuses in the repeated experiment 'clearly indicated' (to him) that hyoscine may cause congenital abnormalities.

It may have been clear to Dr McBride but it was not clear to his own expert witness, Dr Sullivan. In his report (vide Book 6, Evidence: 145) Dr Sullivan stated:

"A further problem in interpretation of the study (the experiment described in the Article) is that many of the malformations were microphthalmia or buphthalmia, which mean abnormally small or abnormally large eyes. Since the foetus is still developing at day 22 of gestation, the eyes often appear to be abnormal size relative to the rest of the body. If the controls were killed on the same day, then these would act as a standard for comparison, but in this study it is clearly stated that the controls were allowed to go to term (30 and 31 days).

One can only conjecture: if Dr McBride had conformed to proper standards of rigorous scientific experimentation and used contemporaneous controls as a comparison with the treated does, it may have been the case that with the standard of comparison provided by the controls he would not have concluded that the eyes of the foetuses were either abnormally small or large.

The sorry saga outlined in the complaints may not have occurred if Dr McBride had followed the basic principles of scientific research, ie the planning and execution of properly designed experiments, the preparation of written protocols in accordance with acceptable standards of scientific research practice and vigilant supervision by a research advisory council."

In the light of the weight which, in relation to the question of "the penalty", if any, which should have been visited upon him, the Appellant seeks to place upon the dissenting view of Professor GD Tracy, one of the members of the Tribunal, it is as well to record, here, that the findings, and the conclusion, of the Tribunal which I have set out above, were unanimous.

Given those findings, and that conclusion, it is difficult to regard the submission, which appears to be put forward on behalf of the Appellant, that "the Tribunal dismissed most of 'the scientific fraud complaints" as other than a supreme exercise in self deception.

So too, given those findings, and that conclusion, the submission that seems to be advanced on behalf of the Appellant to the effect that all that was found against the Appellant by the Tribunal was that he distorted the results of a single experiment, a finding which, while it disclosed an error of judgment, was not one which could support a finding that he was not of good character, seems to me to be another exercise in self deception.

Lest the second of those comments be thought to represent an overly harsh view, I think it appropriate here to record part of what was written by Professor Tracy who, although, as I have earlier recorded, differing from the majority of the Tribunal on the question of "the penalty" to be imposed upon the Appellant, nonetheless was clearly of the view that the conduct found against the Appellant was far worse than some minor peccadillo. What Professor Tracy wrote was, in part, as follows:

"Tn reverse order, complaints 11 to 15 concerning the "'Debendox experiment' were generally found not to be proven, and although there was evidence of false reporting amounting to 'either reckless indifference or inexcusable carelessness' in the case of some particulars, these complaints in aggregate would not lead to reasonable proof of the complaint that Dr McBride was not of good character in the context of fitness to practice medicine.

The most serious complaint in which the particulars were found to be proven are contained in complaint 9 concerning 'The Article' published in the Australian Journal of Biological Science, and to a lesser degree of gravity, complaint No 10 'The Note' published later in partial retraction.

In reviewing the most serious complaint concerning 'The Article' it was noted that after rejection of the initial articles submitted to a journal for publication, Dr McBride commenced a course of false alterations of all the data criticised by the first referee, leading finally to resubmission of The Article to the Editor of the Australian Journal of Biological Science who accepted it for publication. None of these alternations had validity, they were falsifications, but the most serious was the invention of two additional rabbits, labelled 'the Langman rabbits' to try and enhance acceptance of an article originally rejected in part because of the number of rabbits and observed abnormalities were too few to be significant.

After successful publication of the article, Dr McBride was confronted by co workers who had been in his department with the falsifications, whereafter Dr McBride compounded his transgression by attempting to justify all the alterations and most serious of all, by falsely asserting that experiments on the two additional rabbits had been carried out by a colleague in America now deceased.

In a vain effort to preserve his own scientific reputation, and the reputation of Foundation 41, Dr McBride persisted with his denials of any wilful deception through the years which followed up to the conclusion of the inquiry into the Complaints by the Tribunal which began its inquiry in September 1989.

This demonstrates a sustained episode of misconduct which reflects adversely on Dr McBride's underlying character.

Considering his motivation for this fabrication, I believe that he was determined to achieve publication of findings with regard to the potential hazards of preparations containing Hyoscine hydrobromide in pregnant women. His determination to achieve publication of the article was based upon his conviction

• sustained to the present time - that Hyoscine hydrobromide is a potential teratogen, giving rise to the possibility of foetal malformations. It was obvious throughout his evidence that he showed a serious lack of scientific rigour, demonstrating a lack of appreciation for scientific method and meticulous notation of records, together with complete indifference to the principles of statistical inference. "

Then, after setting out a number of matters which he regarded as mitigating factors which should be acknowledged, Professor Tracy continued:

"Tn conclusion, I consider that Dr McBride's conduct in relation to The Article and his subsequent attempt to justify the alterations fraudulently made deserves censure and reprimand. Accordingly I consider that this complaint, brought under s28(f) of the Medical Practitioners (Amendment) Act has been proven and, notwithstanding the positions advocated by both counsel, consider that the Tribunal should consider protective orders provided under s32(R). Under these provisions I consider that his conduct warrants reprimand but that no additional protective order as justifiable as I do not think it is necessary in the public interest to prevent him carry on further as a practising obstetrician. The publication of the Tribunal's condemnatory findings can be relied upon to deter Dr McBride from any future transgressions of the kind committed by him in the past.

In my opinion to apply additional penalties such as suspension, or removal from the Register, would be both unmerited and excessive."

The Tribunal delivered its findings on both "the obstetric complaints" and "the scientific fraud complaints" on 19 February 1993, following which, so it would seem, the hearing was adjourned in order that the parties might consider the Tribunal's findings before the matter was relisted for hearing with a view to determining what, if any, were the determination and orders which might properly be made in the light of the Tribunal's findings.

In the period between June 1991, when the Tribunal concluded its hearing of "the scientific fraud complaints", and February 1993, when the Tribunal delivered its findings on both sets of complaints, the High Court had heard and delivered Judgment upon the Appeal in Smith v The New South Wales Bar Association!. In the course of the reasons which they later delivered for upholding the Appeal by Mr Smith, Brennan, Dawson, Toohey and Gaudron JJ said2: "... But even if the evidence was sufficient to support the findings" (that Mr Smith had lied during the course of his evidence in the first hearing before the Court of Appeal) "so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the Appellant be given an opportunity to be heard as to whether the findings should be made. In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the Appellant before the adverse finding was made. That being so, the finding then made that the Appellant had lied and the

consequence of that finding then determined by Mahoney and Meagher JJA that the Appellant be disbarred were flawed. In the second hearing, evidence which might have affected the finding of deliberate lying was erroneously rejected. It follows that the affirmation of the finding that the Appellant lied and of the order that he be disbarred cannot stand. "

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. "

Although the matter is not entirely clear, it would seem probable that the varying views which had been expressed in Smith v New South Wales Bar Association created doubts in the minds of the parties and their legal advisers as to the use, if any, which might be made by the Tribunal of its findings that "the practitioner deliberately gave false evidence in the inquiry" and "lacked candour in the evidence he gave before the Tribunal", as a result of which doubts, the Respondent's advisers applied to the Tribunal to have it reconvene for the purpose of entertaining submissions, and giving a ruling, on that question.

The Tribunal appears to have reconvened for that purpose on 5 April 1993, and, having heard submissions and considered the matter during the course of the adjournment, on the following day announced a "tentative ruling" in respect of which it indicated it was prepared to entertain further submissions. As recorded in its "Reasons for Determinations and Orders", the Tribunal's "tentative ruling" was in the following form:

"1. To determine the question whether, on the basis of its findings on the particulars and after taking into account the submissions for and against Dr McBride on the question of character, it has been proved to the Tribunal's

satisfaction, that he was not of good character in the context of fitness to practice medicine at the material times set out in the particulars.

2. If the answer to this questions (sic) is 'No', then that is the end of the matter and the proper course would be for the Tribunal to make the appropriate determination in each complaint, ie complaint not proved.

3. If, on the other hand, the answer to the question is 'Yes', then the proper course of the Tribunal to follow would be for it to consider whether at the date of the complaint the evidence overall established to the Tribunal's satisfaction that there had been no reformation of character and accordingly Dr McBride was still not of good character in the context of fitness to practice. Depending on the answer to this question, the determination of the Tribunal in each complaint would be either complaint proved or not proved.

4. It follows that the finding of the Tribunal that in certain respects 'the practitioner deliberately gave false evidence in the inquiry' and 'lacked candour in the evidence he gave before the Tribunal... are not relevant factors to be taken into account by the Tribunal in determining whether the complaints as particularised have been proved."

Having then entertained further submissions from the parties' representatives, the Tribunal confirmed its "tentative ruling" as being its decision. Following the morning adjournment on 6th April 1993, counsel for the Respondent then sought leave to amend complaints 9 and 15 so as to add additional particulars relating to the falsity of the Appellant's evidence, and, requested the Tribunal, in the alternative, of its own motion, to deem as a referred Complaint under CL5(2) of Schedule 4 to the Act a form of new Complaint which had been prepared meantime. It is unnecessary to record the manner in which it was sought to amend the particular complaints or the form of Complaint which it was sought to have deemed to have been referred since, having heard submissions on the matter and having reserved its decision on the application, the Tribunal, on 31st May 1993, refused leave to the Respondent to amend the complaints and declined to deem as a referred Complaint the form of Complaint in respect of which the application had been made.

The basis upon which the Tribunal determined the application is recorded in its "Reasons for Determinations and Orders" in the following terms: "The Tribunal, by its Deputy Chairman, ruled that in the circumstances of the Tribunal having published its findings after the conclusion of the evidence and the submissions of the parties, it would be a breach of the rules of natural justice for the Tribunal to accede to the application of the (Respondent). The Tribunal as the decision maker would be disqualified from participating in an adjudication of the proposed "deemed additional complaints' as it had prejudged the merits of the allegations raised in these complaints and published it findings. The common law rule of necessity which is to the effect that disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act, has no application in this case. It would be open to the (Respondent) were she so minded, to refer complaints to another tribunal in the form of the proposed additional deemed complaints."

Although it is not entirely clear that this was so, it would seem probable that, in conjunction with the hearing by the Tribunal of the parties' submissions as to the use, if any, which the Tribunal might make as to the findings to which 1 have earlier referred, the Tribunal heard evidence, and entertained submissions, in relation to the Appellant's character. The evidence which was tendered - which evidence comprised both oral evidence and written testimonials - was directed,

not merely to the Appellant's skills and experience as an obstetrician and gynaecologist, but also to questions as to the Appellant's honesty and trustworthiness. Thus, in the course of his oral evidence, Mr Wallace was asked in chief:

"Q. You have had I think the opportunity of reading the material supplied to you concerning the findings of the Tribunal? A. I have.

Q. You have made some observations in connection with that in your report. Insofar as the Tribunal has found that Dr McBride has engaged in acts of dishonesty and untruthfulness, have you observed any similar conduct on the part of Dr McBride in your dealings with him? A. Not in my dealings with him, no."

So too, in the course of his evidence in chief, Dr Maybloom was asked:

"Q. In the course of your dealings with Dr McBride have you had an opportunity to form an opinion as to his character? Yes.

Q. What opinion have you formed? A. I have always considered him to be absolutely straight, honest and helpful in any respect that he could be.

Q. You are aware I think from the material that you have read, the Tribunal has found that Dr McBride has engaged in a number of acts of dishonesty INCLUDING GIVING EVIDENCE DISHONESTY TO THIS TRIBUNAL? A. I have read that.

Q. Have you in your knowledge and dealings with Dr McBride observed any indication of dishonest behaviour on his part in the past? A. Never.

Q. So far as the Tribunal has made those findings, are you able to comment to what extent you find those matters found against him by the Tribunal as being typical of or consistent with Dr McBride's usual behaviour? A. I do not find them at all consistent or typical of his usual behaviour. I find them to be completely out of character with everything I know about Dr McBride." (my emphasis)

So too, Dr Pepper, in his oral evidence, was asked in chief:

"Q. In connection with Dr McBride you have told us in your reference how you came to meet him and in what context you met him; as a result of that contact and as a result of the observations you made of him in accordance with that contact, did you form an opinion as to his character? A. I did.

Q. What was that opinion? A. I felt he was absolutely reliable, he had great integrity and kindliness and concern towards his patients and I had great respect for him.

Q. Recently have you had an opportunity to read the Overview finding of the Conclusions of the Tribunal in connection with this inquiry? A. I have.

Q. You appreciate the Tribunal has found against Dr McBride a number of serious matters of dishonesty INCLUDING UNTRUTHFULNESS IN THE EVIDENCE HE SAVE BEFORE THE TRIBUNAL? A. I did.

Q. To what extent are the matters which the Tribunal has found against Dr McBride consistent with your observations of his conduct over the years? A. It was quite at variance with the character of the man I knew. I still have tremendous respect for him as a man and as a medical practitioner. Q. In your dealings with Dr McBride have you found any indication or suggestion of dishonesty? A. Never." (my emphasis)

However, to return to the strict order of narrative. On 31st May 1993, following the announcement of its ruling on the Respondent's application for leave to amend the Complaint, or to have the Tribunal deem as a referred Complaint the form of Complaint that had earlier been tendered to it, the Tribunal

invited the submissions of counsel "in relation to whether or not the Complaints that are still alive, so to speak, (had) been proved and if so, what would be the appropriate order of the Tribunal".

In the light of the Appellant's Complaint that, in coming to its ultimate conclusions, the Tribunal took into account irrelevant matters, it is perhaps desirable that I record some of the submissions advanced by the Appellant's counsel on this occasion. Having dealt with the sole particular in "the obstetric complaints" which the Tribunal had found established, and having submitted that, at most, the only "penalty" called for in respect of it was a caution, counsel proceeded:

"That then brings me to the question of character. The issue now before the Tribunal is whether those particulars in Complaints 9 to 15 which the Tribunal has found proven are such as to establish Dr McBride to be not of good character. On that issue my submission is that those particulars which the Tribunal have found to be proved WHEN SEEN IN THE CONTEXT OF THE WHOLE OF THE EVIDENCE BEFORE THE TRIBUNAL does not establish that Dr McBride is within the meaning of the Act otherwise than of good character.

That submissions involves three elements each of which I will come to in turn. The first element is what do the findings establish? The second element is what does the other relevant issue before the Tribunal establish? And the third element with which I will deal first is, what does 'not of good character' mean in the context of the Act.

At the outset on that third proposition, I should say that there is very little, if any, difference between the approach my learned friend Mr Basten urges, that which Your Honour discussed with him this morning in the course of argument. It seems that the parties largely (sic) ad idem on the relevant test as to good character being viewed in the context of fitness to practice good medicine and also as to the consequences which will flow from an adverse finding on that issue.

It is my submission that in the Medical Practitioners Act 'not of good character' means 'unfit by reason of some inherent personal characteristic' and 'unfit to be held out as a medical practitioner'. That involves two concepts. The concept of 'unfit to be held out as a medical practitioner' and the concept of 'inherent - ' or on the last occasions I think I was corrected and then narrated (sic) in the press for using the word 'innate characteristics as distinct from professional qualifications or behaviour'.

The onus of proof lies at this stage of the proceedings, as always, on the (Respondent). The (Respondent) has the burden of persuading a Tribunal by the preponderance of evidence that it should be comfortably satisfied that (the Appellant) suffers from such a defect of character as to make him unfit to be held out as a registered medical practitioner. It is for that purpose (sic) to show that he has on some occasion in the past engaged in conduct worthy of disapproval or even of condemnation. The (Respondent) must establish what after all the word character means. The (Respondent) must establish that it is not an isolated incident or series of incidents but conduct illustrative of a serious character defect, a serious quality defect in the (Appellant) such as to make him a person to which the responsibilities of being a medical practitioner cannot in the interest of the public he trusted.

May I now turn to show why in my submission the (Respondent) has (failed) to do that. The particulars that the Tribunal has proved established is that in respect of one transaction Dr McBride has been dishonest. They do not establish

an inherent quality of dishonesty nor do they establish that his dishonest conduct is typical or a characteristic of his. Although I will turn to each of the following matters in a little more detail after the adjournment.

In respect of the experiment - the Tribunal found no dishonesty. In respect of the evidence given in proceedings in the United States the Tribunal found culpable negligence but not dishonesty. It was only in respect of the (hyoscine) experiments with (rabbits) that a (sic) Tribunal found dishonesty in some respects. THE TRIBUNAL ALSO FOUND THAT DR MCBRIDE HAD NOT BEEN HONEST IN THE WITNESS BOX. My learned friend, despite the Tribunal's rulings, on 6 April this year, has addressed at length on that matter. This morning I remind the Tribunal of those rulings which was (sic) set out in the document handed down on 6 April and subsequently confirmed as being the ruling of the Tribunal.

The finding of the Tribunal that in certain respects the practitioners (sic) gave false evidence in the inquiry and lacked candour. THE EVIDENCE GIVEN BEFORE THE TRIBUNAL ARE (SIC) NOT RELEVANT FACTORS TO BE TAKEN INTO ACCOUNT BY THE TRIBUNAL IN DETERMINING WHETHER THE COMPLAINTS AS PARTICULARS HAS (sic) BEEN PROVED. It was after that ruling was handed down that my learned friend sought leave to amend, which leave was refused this morning. Notwithstanding that my learned friend has addressed at length on those matters which the Tribunal has in my submission and respect properly held to be irrelevant to the present issue. Because my learned friend has addressed on it, I will not need to touch on it but in substance there are two things to be said. IT IS NOT AN AVAILABLE MATTER WHICH THE TRIBUNAL COULD HAVE REGARD TO FOR INSTANT PURPOSES BUT IF IT WERE RELATES TO THE VERY SAME SUBJECT MATTER, AS THE ONLY MATTER IN RESPECT DISHONEST WAS FOUND (SIC), NAMELY THE (HYOSCINE EXPERIMENT). IN OTHER WORDS IF IT WERE AVAILABLE IT IS DISHONESTLY IN RESPECT OF THE SAME ISOLATED TRANSACTION.

HIS HONOUR: The thrust of the (Respondent's) case as I understand it is the findings of the Tribunal to demonstrate the findings of the dishonesty.

HIS HONOUR: By reason of his conduct in the reporting of the experiment and the reporting of the note and that (trait) of dishonesty still exists by reason of the nondisclosure by Dr McBride of these fraudulent reports. He had the opportunity on a number of occasions between 1981 and the hearing of the Complaint and indeed as to his conduct in defending those Complaints but the (trait) of dishonesty is still persisting, that is how I understand the thrust of the case.

BRERETON: If that is the case then it is a case which the Tribunal has refused leave to the (Respondent) to make insofar as the Complaint that it (sic) seeks to rely on matters other than those originally particularised, for proof of a lack of good character. I can understand how those matters might be put in response to a submission. Let me put it this way. THE CONDUCT SINCE 1981 MIGHT WELL DEPRIVE OR REDUCE THE FORCE OF THE SUBMISSION WITH DR MCBRIDE WOULD OTHERWISE MAKE, THAT IT HAPPENED 10 YEARS AGO AND YOU CANNOT CONCLUDE PRESENT UNFITNESS FROM WHAT HAPPENED 10 YEARS AGO. But they cannot be used as

principle (sic) matters in the finding of a good character. In other words, by learned friend cannot say these matters prove a lack of good character when seen in the context of other matters. If my learned friend wanted to rely on that context it had to be particularised at the time.

HIS HONOUR: I understand that Mr Brereton. What the Plaintiff (sic) sought to do by either an amendment or by way of a deed (sic) referred to in the Complaint, was to add a new Complaint with new particulars in order to prove lack of good character. The Tribunal refused to permit that. That, however, is still a matter for the Tribunal to consider, whether or not if it finds lack of good character by reason of the conduct particularised in the Complaint, whether between the time of the demonstrative (sic) lack of good character there has been a reprobation (sic) and the fact that if in either case the findings demonstrate a lack of good character to the point that it illustrates a (trait) of dishonesty of sufficient gravity to impair acceptance to practise. The question then is whether or not his conduct since that time including his conduct in these proceedings demonstrates a lack of reprobation.

BRERETON: I will return for just a little while to the matters that we were discussing before the adjournment because they fit conveniently into my submissions. I was addressing before the adjournment the Tribunal's findings of fact and what they established insofar as Dr McBride's character is concerned.

Then we come to the findings in respect to the hyoscine experiment with rabbits. In respect of that experiment, the Tribunal has found that in various experiments, Dr McBride engaged in dishonest conduct. It was found that the report was intentionally misleading in respect of its reference to controls, that it was misleading due to reckless indifference so far as it reported that the foetuses had been sectioned. It found that it was misleading, but unintentionally so, in respect of the method of injection used, that it was misleading in respect of a number of pregnant rabbits and one would infer, though it is not expressly said so that this was due to reckless indifference. It was found that the report was misleading as to the day of mating of the rabbits due to reckless indifference, that it was misleading in respect of the assertion that injections took place at 12 hourly intervals due to reckless indifference, that it was misleading in respect of the death of two of the rabbits, and there was no finding as to whether that was attributable to negligence, indifference or intention, but it might be inferred that it was not less than reckless indifference, that it was intentionally misleading in respect of the Langman rabbits and that it was misleading either intentionally or due to reckless indifference in respect of the doses administered to each rabbit and the weight of the rabbits. Further, the Tribunal found that the subsequent note was misleading in that it implied that there were contemporaneous controls for the repeated experiment and in omitting that the reason for the repeated experiment was that the data did not correspond with the recollection or records of the co authors. The Tribunal further found relevantly that the circumstances were aggravated by the 'calling in aid' of the name of Professor Langman and that the misstatements were motivated by a desire to enhance the publishability of the article.

Now when one evaluates those findings, in my submission, the consequence is this: in respect of one experiment concerning hyoscine with rabbits, Dr McBride made false and misleading statements, some innocently, some intentionally, some with reckless indifference, but those misstatements are limited in the Tribunal's findings to that one experiment and the reporting of it. NOW ALTHOUGH MY

LEARNED FRIEND REFERRED THE (SIC) NUMEROUS OTHER MATTERS IN SUBMISSIONS THIS MORNING, THEY DO NOT FORM PART OF THE PARTICULARS TO WHICH REGARD CAN BE HAD FOR PRESENT PURPOSES. IT WAS NOT PART OF THE PARTICULARS THAT DR MCBRIDE DID NOT OWN UPON AS IT WERE, WHEN CONFRONTED BY HIS CO RESEARCHERS, NOR WAS IN PART OF THE PARTICULARS THAT THERE WAS DECEPTION IN INCLUDING THEM AS CO AUTHORS. NOR WAS IT PART OF THE PARTICULARS THAT HE DID NOT TELL THE TRUTH TO THE RESEARCH ADVISORY COMMITTEE. NOR THAT WHEN THE ABC SCIENCE SHOW WENT TO AIR. HE ISSUED A FULL PRESS RELEASE, NOR THAT HE DID NOT TELL THE TRUTH TO THE GIBBS INQUIRY. NOR THAT HE WROTE A LETTER TO NATURE WHICH DID NOT COME CLEAN. NONE OF THE MATTERS UPON BY MY LEARNED FRIEND AS FORMING DART OF THE MATERIAL WHICH SHOWED DR MCBRIDE'S UNFITNESS FORM PART OF THE PARTICULARS UPON WHICH THE (RESPONDENT) IS PRESENTLY ENTITLED TO RELY.

I MUST THEN TURN TO THE FINDINGS WHICH THE TRIBUNAL HAS MADE. SO FAR AS DR MCBRIDE'S EVIDENCE IN THE COURSE OF THE HEARING IS CONCERNED. FOR THE REASONS WHICH HAVE ALREADY BEEN DISCUSSED, THEY ARE NOT AVAILABLE AS A GROUND ON WHICH A WANT OF GOOD CHARACTER CAN BE FOUND. IF I MAY SUMMARISE THE DISCUSSION WHICH TOOK PLACE BETWEEN YOUR HONOUR AND ME IMMEDIATELY BEFORE THE LUNCHEON ADJOURNMENT, THE MATTERS WHICH HAVE TAKEN PLACE SINCE THE EVENTS IN QUESTION PROBABLY DEPRIVE DR MCBRIDE OF A SUBMISSION THAT THOUGH HE WAS THEN OF BAD CHARACTER HE HAS SINCE REFORMED. THEY DO NOT DEPRIVE HIM OF A SUBMISSION THAT HE NEVER WAS OF BAD CHARACTER AND THAT, I THINK, PUTS IN A NUTSHELL THE DISCUSSION WHICH TOOK PLACE BETWEEN US. EVEN IF THOSE MATTERS WERE AVAILABLE FOR THE TRIBUNAL TO TAKE INTO ACCOUNT, IT IS FUNDAMENTALLY IMPORTANT THAT THEY RELATE TO THE VERY SAME SUBJECT MATTER AS THE ORIGINAL MISSTATEMENTS FOUND AGAINST DR MCBRIDE. THEY SHOULD BE SEEN AS PART OF THE SAME TRANSACTION AND EPISODE. IT WAS PERSISTENCE IN THE ONE SAME ACT OF DISHONESTY, RATHER THAN SEPARATE AND NEW ACTS OF DISHONESTY."

Ihave thought it desirable to record these matters at some length since it seems to me they demonstrate two matters, they being:

1. that it is clear that, after the Tribunal had delivered its findings in relation to both "the obstetric complaints" and "the scientific fraud" complaints, the Appellant had an opportunity of leading evidence directed, not merely to his character in the broad sense, but his character in the light of the particular findings of dishonesty and lack of candour as a witness; and

2. that, while the Appellant's counsel submitted that such particular findings, unless made the subject of the specific complaint, could not found an independent finding of lack of good character, he accepted that, if the matters which had in fact been the subject of complaint and had been found established lack of good character, then the various matters to which attention had been directed would be

available to the Tribunal for the purpose of considering whether or not, in the intervening period, the Appellant had reformed.

Counsel's submission appear to have concluded on 1 June 1993, following which the Tribunal reserved its decision.

Before the Tribunal came to deliver its final determination, however, the Court of Appeal delivered its Judgment in the matter of Bannister v Walton+. The decision of the Court of Appeal is of relevance to the present matter since, in the leading Judgment, that of Mahoney JA, there occurs a discussion of the decision of the High Court in Smith v New South Wales Bar Association. In the course of his Judgment, Mahoney JA said5: "As I have said, the problem to which I now refer arises where, in the proceedings, the party is well aware eg, by what has been said and done in the proceeding, that it is possible that the Court may find him to have deliberately lied in evidence before it. Is it required before a finding of lying can be used to determine the order to be made, that there be 'an amendment of the particulars of complaint' to make that a specific of misconduct?

It is, I think, not clear in terms whether, in the majority judgment, such a view was adopted. What was there said: for example (at 609 and 610; 63 (sic)) is in terms, consistent with the view that it is sufficient that the party know of the possibility that a finding of lying may be made.

This is, of course, a matter of importance in determining how cases of professional misconduct are to be dealt with. A tribunal or this Court will ordinarily not make a finding that a party has lied until, following the close of the evidence, it has had an opportunity carefully to examine what has been said and done. If it concludes that the party has lied, but cannot take that into account in determining its order without making it the subject of a specific complaint, then it must reconvene the court or tribunal, offer the complainant an opportunity to amend, rule on the amendment, and then reconsider the complaint as amended.

In the present appeal, the question whether Dr Bannister lied to the Tribunal was, in the sense to which I have generally referred, a live issue and one the existence of which was apparent to Dr Bannister. The tribunal found that he had been guilty of deliberate deceit in charging and, accordingly, that when he said the overcharging was due to accident and not to deliberate deceit, he was not to be accepted. The tribunal found, for example, that 'the respondent knew that the bills were wrong and that he was committing a fraud' and that when he said 'that he believed that he was quite entitled to charge for attendances at a lower rate for Dr Deutsch' in an account under his own name, 'the respondent held no such belief. These involve in my opinion, a finding that Dr Bannister deliberately lied to the tribunal. It was 'the persistence of such deceitful conduct' which the Tribunal took into account in concluding that there was 'within his character a marked degree of moral turpitude' and that 'he is not of good character'.

With respect, I am of the opinion that what was held in the Smith case does not make such a finding or such a use of it inconsistent with principle. It was not, in my opinion, necessary for the tribunal to amend the charges to allege lying or some analogous matter before it could make such a finding or such a use of it in the present case.

Tam therefore of opinion that the decision in the Smith case is not of assistance to Dr Bannister in this Appeal."

The further significance of the decision of the Court of Appeal in Bannister v Walton is that, notwithstanding what Mahoney JA had written, the High Court refused special leave to appeal.

What followed in relation to the complaint before the Tribunal after the delivery of the Judgment of the Court of Appeal in Bannister v Walton is recorded in the 'Reasons for Determinations and Orders" of the Tribunal in the following terms:

"Once again a matter of law was raised and the Tribunal heard submissions from counsel for the parties on the point and considered the passages in the Judgment which are relied upon by (the Respondent). The Tribunal, by its Deputy Chairman, rules that in the passages relied upon by (the Respondent) there is no suggestion in Mahoney JA's Judgment that a finding that a party has lied may be used as proof of a complaint in which it was not alleged, as opposed to determining what protective orders might be made once proof of the complaint has been established. The Tribunal notes that Mahoney JA in a more recent unreported Judgment (Young v Jackman (Court of Appeal unreported 2 July 1993) has repeated with reference to Smith's case that there are limitations on the use which can be made of such findings. In the view of the Tribunal the comments of Mahoney JA in the Appeal of Bannister dealing with his analysis of the ratio of Smith's case are supportive of the Tribunal's 'tentative ruling'.

It was submitted by counsel for the practitioner that when Mahoney JA proceeded to consider the use which may be made of a finding, properly made, that a party has lied, he was addressing the use which could be made of such a finding in connection with determining what was an appropriate protective order and not whether a proof of the complaint was established. THE TRIBUNAL CONSIDERS THIS SUBMISSION TO BE CORRECT AND NOW FOR THE SECOND TIME CONFIRMS THE CORRECTNESS OF ITS 'TENTATIVE RULING' AND INDICATES THE TRIBUNAL'S INQUIRY INTO AND DETERMINATION OF THE COMPLAINTS HAS PROCEEDED IN ACCORDANCE WITH THIS RULING." (My emphasis)

On 30th July 1993, the Tribunal delivered its "Reasons for Determination and Orders". Those Determinations and Orders were as follows:

1. In relation to the obstetric complaints The Tribunal determined that Complaints 1-5, 7, 8A and 8B had not been proved. The Tribunal determined that Complaint 6 as particularised in para6(e) had been proved. The Tribunal ordered that (the Appellant) be reprimanded for the misconduct specified in Complaint 6(e).

The Tribunal determined Complaints 11 to 15 not proved.

The Tribunal determined Complaints 9, 10 had been proved.

The Tribunal by majority ordered that (the Appellant's) name be removed from the Register of Medical Practitioners.

(1) that (the Respondent) pay (the Appellant's) costs of and incidental to the inquiry into Complaints | to 8B inclusive save and except (the Appellant's) costs of and incidental to the inquiry of Particular (e) of Complaint 6.

(2) that each party pay its own costs of and incidental to the inquiry into Particular (e) of Complaint 6.

(3) that the costs under O.1 be assessed on the basis of indemnity costs in accordance with Supreme Court Practice under the Costs Rules of (this) Court and should be paid by (the Respondent) when assessed and agreed and failing agreement when assessed by a taxing officer of the District Court and upon the issue of a Certificate of Assessment by the Deputy Chairman of the Tribunal in accordance with Reg7 under the Medical Practitioners Act. The assessment of costs was to include an allowance for (the Appellant's) attendances before the inquiry of and incidental to the inquiry into the particulars of the obstetric complaints which were found not proved. The allowance should be in accordance with the allowance made and provided for expenses paid to expert medical witnesses in (this) Court. In assessing the costs the taxing officer might exercise the discretion of a taxing officer of (this) court in the allowance of costs conferred by the Supreme Court Rules or by any Act having application to the assessment or taxation of costs in (this) Court. If (the Appellant) had entered into a costs/fees agreement with his solicitor affecting the retainer the agreement might be given effect to by the taxing officer if the same be approved and certified by the Deputy Chairman of the Tribunal.

4. that each party pay her, or his, own costs of and incidental of the inquiry into Complaints 9 to 15 inclusive.

5. that there be liberty to apply to the Deputy Chairman of the Tribunal in respect of those cost orders.

Between the time when the Tribunal concluded its hearing in relation to the Determination and Orders which might properly be made in the light of its various findings, and the time when it delivered its "Reasons for Determinations and Orders", the Medical Practitioners Act 1938, pursuant to which the Complaint had been lodged, was repealed and the Medical Practice Act 1992 came into operation. It seems to be agreed between the parties that, by virtue of the operation of the transitional provisions relating to unconcluded proceedings which had been commenced under the former Act, the Determinations and Orders of the Tribunal are to be taken to have been made pursuant to the provisions of the 1992 Act, as also does it seem to be agreed that, in relation to the Determinations made by the Tribunal, the Appellant might appeal with respect to a point of law, while in relation to the Orders made by the Tribunal in reliance upon those Determinations, the Appellant had a general right of appeal, that appeal being in the nature of a re hearing.

Being dissatisfied by the Determinations of and Orders made by the Tribunal, the Appellant filed a Notice of Appeal in which he claimed:

that the Tribunal erred in law in holding that the facts found by it in Complaints 9 and 10 established that the Appellant was not of good character within the meaning of the 1938 Act;

that the Tribunal erred in law in taking into account in determining whether Complaints 9 and 10 were proved matters which were not particulars of those or of any complaint; and

that the Tribunal's order was in the circumstances unwarranted and too severe.

On the hearing of the Appeal the Appellant sought, and was granted, leave to add, as additional grounds of appeal, the following:

that the Tribunal was in error in determining that the Appellant was not of good character by reference to findings in the Particulars (Book 6 Appendix) which differed in material respects from those which it had published (Book 7

Findings) and upon which the submissions of the parties had proceeded, without affording the Appellant any notice that it attended to review those findings;

alternatively, that the Tribunal was in error in concluding that the Appellant was not of good character without making any or any sufficient finding as to his mental state which accompanied the false or misleading statements.

The Respondent filed both a Notice of Contention, and a Further Notice of Contention, by which she asserted that the decision of the Tribunal should be affirmed on grounds additional to those upon which that decision was based.

Given the second of the grounds of appeal taken by the Appellant, it is of interest to note that the grounds taken in the Notice of Contention were:

"1. That the Tribunal erred insofar as it declined to take into account in reaching a conclusion as to whether or not the Appellant was of good character its own findings that the Appellant had given deliberately false testimony to the Tribunal; and

2. That that finding, either by itself or in combination with the other findings made by the Tribunal relevant to the character of the Appellant, justified the ultimate finding that he was not of good character. "

Given the third of the grounds of appeal taken by the Appellant, it is of interest to note that the grounds taken in the Further Notice of Contention were:

3. That having held that the Appellant was not of good character, the Tribunal erred in holding that it had a discretion as to the appropriate order, the Respondent having conceded that removal from the Register was the only appropriate order. Judgment Book 8, at 8.3.

4. That having held that the Appellant was not of good character, the Tribunal was bound to order the name Of the Respondent to be removed from the Register.

In addition to filing the Notice of Contention, and the Further Notice of Contention, the Respondent filed a Cross Appeal, which Cross Appeal was directed to the Orders for costs made by the Tribunal and, in particular, to 0.3 and O.4, the grounds of appeal in so far as they related to 0.3 being directed to the power of the Tribunal to make Orders of the type therein set out. The questions raised by the Respondent in her Cross Appeal are matters going far beyond questions relating to the manner of exercise by the Tribunal of a discretion and raise matters which, in my view, are of considerable importance. In the event, however, the Appeal having proceeded beyond the time originally allotted to it, and the Court being unable then to provide additional time to enable the Cross Appeal adequately to be dealt with, the hearing of the Cross Appeal was adjourned to be dealt with after the substantive matters raised in the Appeal had been disposed of. This being so, it seems to me that, at this stage, no more is required, in relation to the Cross Appeal, than to note the general nature of the grounds of appeal which have been taken and which have yet to be disposed of.

With that preface, which, although lengthy, I consider, in the circumstances, to have been necessary, I turn to deal with the Appellant's grounds of appeal.

I turn, first, to the additional grounds of appeal, the form of which was not provided to the Court until the second day of the Hearing of the Appeal. So that what is complained of might more readily be understood I attach as an Appendix to this Judgment a "Schedule of Findings" which was provided to the Court in relation to these two additional grounds of appeal.

The significance which the Appellant sought to attach to these additional grounds of appeal is sufficiently recorded in the following passage in the Transcript at the time when the form of proposed additional grounds of appeal was handed to the Court on the afternoon of the second day of the Hearing:

"*SACKAR: The point of them your Honours simply is if the book 8 findings in the respects we have outlined in the schedule are qualitatively different in what we suggest, and submit they are, and if the Tribunal has taken those into account, or considered those as the findings, because it is plain that it's the complaints in 9 and 10 which provide the foundation for their findings, then they have not afforded us an opportunity to be heard, having published the earlier findings which are different in terms of the quality of the acts or conduct of the (sic) found proven.

HIS HONOUR: We won't hear any argument on that, I think we know what the two points are. What is your attitude to the application.

BASTEN: In relation to the first one, I understood the point made yesterday, I think by Mr Sackar, we would not oppose leave to amend, although we may say there is no substance in it. In relation to Ground 5, my understanding is that the Appellant's case is this: The Tribunal could not have concluded the Appellant was not of good character without making the changes from Book 7 to Book 8. If that is right, then it is really a related ground I suppose. If it means something other than that, though, I would appreciate having that made clear because

HANDLEY JA: I think the (sic) that is in this misrepresentation does not go to bad character, you have to find mens rea, if I can use that expression, and its not sufficient to find that a person made a statement which objectively was false or misleading. You have to find that there was something reprehensible about his or her character in making or allowing that statement to be made.

KIRBY P. Not sure about that. In the old notion of bad character a person might just be stamped with some flaw of original sin and may not ever be able to escape from it. I don't wish to appear to be unsympathetic to this notion.

BASTEN: I just don't think it has any bearing of this case. Ground 5 is not restricted in any sense, apart from the word 'alternatively' to the particulars, which changed. That is part of my problem.

SACKAR: It is meant to be restricted to those. And I agree precisely with what Mr. Justice Handley has just said as to the way in which that is to be understood.

With respect, it seems to me that, despite the differences in language which may be seen if one compares the matter appearing in Book 7 with the matter appearing in Book 8 of the Appeal papers, there is no substance in ground 4 of the Grounds of Appeal. I say this since it is, in my view, clear that, despite those differences in language, the Tribunal did not consider that there was any difference in substance between the two sets of "findings". That this is so is, in my view, demonstrated by the fact that in its "Reasons for Determination and Orders" the Tribunal, after recording the events surrounding the application to amend the Complaint insofar as it related to the scientific fraud complaints, and recording the determination of the Deputy Chairmen of the Tribunal that the Tribunal had a discretion to make a protective order other than an order removing the name of (the Appellant) from the Register in the event that a complaint under s28(f) of the 1938 Act had been proved, then continued:

The Tribunal has published its unanimous findings that a number of particulars in support of the Complaints 9, 10, 13 and 15 brought against Dr McBride alleging 'scientific fraud' were found to be proven (vide Book 7, Findings: 1-11) these findings are reproduced in the Appendix to these reasons."

It should, however, be pointed out that what is said to be the "Schedule of Findings" is misleading in that what is said to be the finding in Book 7 is in fact the finding of the Tribunal in each case, together with the commentary which thereafter follows that finding, while it is not pointed out that what is recorded in Book 8 as to the finding of the Tribunal, is, in each case, identical, the commentary which accompanied the finding in Book 7 at times not being reproduced at all, and in other cases, being reproduced, but with some variation in language. Nor, is it without point to note that, in some cases in which it is said that there are qualitative differences in findings, that qualitative difference is said to have been brought about by the addition to a phrase such as "with reckless indifference as to whether it was true" of the words "or not".

I turn, then, to the original Grounds of Appeal which were taken, which Grounds of Appeal are, in my view, the only ones with any substance in them. As T have earlier recorded it, the first Ground of Appeal taken by the Appellant was that the Tribunal erred in law in holding that the facts found by it in relation to Complaints 9 and 10 established that the Appellant was not of good character within the meaning of the 1938 Act. If I have understood them aright, the submissions advanced on behalf of the Appellant to support this ground of appeal fall into two broad groups, they being: 1. submissions to the effect that, even if it were permissible to view those findings in isolation, they, for a variety of reasons, would not, in law, justify a finding of want of good character; and

2. submissions that, when viewed in the light of all relevant factors, some of which so it seem to be suggested, were not taken into account, those findings would not, in law, justify a finding of want of good character.

Insofar as the first of these groups of submissions is concerned, the argument, as I understand it, is founded upon the basic propositions:

1. that a practitioner will be "not of good character" if, and only if, his character is so defective as to affect his or her fitness to practice as a practitioner; and

2. the concept of good character, or lack of it, is concerned, not with isolated acts or omissions, but with the essential qualities of the practitioner, it following that, ill order that a complaint that a practitioner is "not of good character" might be established, it must appear that the practitioner suffers from such a defect of character as to affect his or her fitness to be held out as a registered medical practitioner.

The submissions then seek to build on those primary submissions by submitting that, at best, the Tribunal's findings established no more than that, in relation to one series of closely connected incidents, the Appellant had been dishonest, and that it had not been shown that dishonesty was typical or characteristic of him.

The second group of submissions, as I understand them, proceed upon the basis that it was not open to the Tribunal to treat its primary findings on the complaints in isolation, and that the ultimate weight to be given to those primary findings could properly be determined only after the Tribunal had had - as it seems, in some way which I confess to have been unable to follow, to be suggested that the Tribunal failed to do - regard to a variety of factors such-as, the Appellant's underlying qualities as shown by his past behaviour, the motivation which might have given rise to the conduct of which complaint was made, and the Appellant's conduct since the matter complained of insofar as that bore on the question whether, notwithstanding the primary findings, the Appellant might now be regarded as being of good character.

If my understanding of the Appellant's submissions correctly records the substance of the Appellant's case on this ground of appeal, then, with respect, I would suggest that that ground has not been made out; on the contrary, so it seems to me, a consideration of the Tribunal's "Reasons for Determinations and Orders" would demonstrate the contrary.

When, in the course of its "Reasons for Determinations and Orders", the Tribunal came to deal with "a question of character" it commenced with a number of general observations including the following:

"The Tribunal recognises that there may be personal misconduct by a medical practitioner of a kind deserving of strong disapproval and condemnation but which has little or no bearing on the question of fitness to practice.

The Tribunal also recognises that a finding that a medical practitioner is not of good character in the context of fitness to practice medicine generally, if not universally, results in a loss of entitlement to practise medicine. The Tribunal has kept in mind that before Complaints 9 and 10 may be found proved, the complainant has the burden of persuading the Tribunal that on the preponderance of the evidence it should be comfortably satisfied that at the time of the hearing of the Complaints Dr McBride suffered from such a defect of character as to make him unfit to be held out as a medical practitioner."

Having done so, the Tribunal then directed itself in the following terms:

"To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practice medicine, one must consider:

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practice medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other misconduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner."

In so directing itself, the Tribunal did not, in my view, fall into error, for statements to the effect of that contained in the Tribunal's "Reasons for Determination and Orders" may be found in a number of the authorities to which our attention was drawn during the course of the Appeal (see, for example, Ex Parte Tziniolis; re The Medical Practitioners Act®, Herron v McGregor'; Gill v Walton') - indeed, as I have understood them, the submissions of the Appellant proceed upon the basis, not that the Tribunal misdirected itself as to the principles to which it should have regard, but that it fell into error in the manner of its application of those principles to the facts as it had found them.

6. (1966) 84 WN (Pt2) 275
7. (1986) NSWLR 246
8. (1991) 25 NSWR 190

Having so directed itself, the Tribunal then proceeded to express its view as to the various matters to which it had referred as being the matters which it was bound to consider.

Under the heading "Error of Judgment or Defect or Flaw in Character" the Tribunal wrote:

"Dr McBride's proven misconduct as particularised in Complaints 9 and 10 cannot be satisfactorily explained away as an error of judgment caused by an "excess of zeal... in the belief that it was important to publish information about a potentially dangerous drug' as was argued by his counsel. Dr McBride claimed that he held the belief that accepted scientific principles in relation to experimentation and the publication of experimental results could be ignored or compromised if it was necessary to give an early warning to the public of the potential danger of a drug - ie the ends justify the means. He claims he held this belief for a period of over twenty years commencing in or about 1966 and ending in 1987 following the discussion on the ABC Science Show of the allegations made by Mr Vardy and Ms French of data falsification by him in the field of medical research at Foundation 41.

It is a curious belief for a man with Dr McBride's professional background in clinical practice and medical research to hold and, for obvious reasons, one that he was never prepared to divulge to his professional colleagues. Throughout this period he had a keen interest in promoting medical research into the safety of drugs taken by pregnant women, no doubt, as a result of his experience with Thalidomide. He carried out research and published papers and spoke at seminars on the subject of teratogenic drugs. He was instrumental in the incorporation of Foundation 41, a research institute completely dependent on public donations and which had as its aim the pursuit of research into the causes of intellectual and physical handicap in unborn children. He was the director of medical research and the chairman of the research advisory committee of this institution. This belief, which he claims he held, would have been an anathema to his professional colleagues; he knew that they would never have accepted that there could ever be any justification for ignoring or compromising the validity of rigorous scientific experimentation and reporting on the grounds advanced by him at this Inquiry.

An excess of zeal based on this belief cannot satisfactorily explain the falsifications made by Dr McBride in the preparation of the Article as an error of judgment. Dr McBride did not simply alter the experimental data to fit the hypothesis, he invented material data to support his hypothesis that hyoscine was a possible teratogen. When he did this he crossed the line that separates error of judgment and moral turpitude. He well knew that the TAP referees were correct when they criticised as untenable the conclusion advanced by him in the paper submitted for publication (ie that one malformed litter out of six indicated a dose related response) and that the paper was not worthy of publication."

"Tt was moral blindness rather than error of judgment that led him on a course of calculated deception extending over a period of five to six months in his subsequent reporting of the experiment for publication in AJBS. Even if one were to accept his counsel's submission that Dr McBride's overriding motive for his actions was a concern for the public welfare based on a conviction that there were risks associated with hyoscine as a possible teratogen, Dr McBride's misconduct in the period leading up to the publication of the Article and the Note can only be explained as emanating from a defect or flaw in his character. An essential quality of good character is honesty. Moral discipline is required for this quality

to be held and maintained and it is given the name of conscience. His conduct in causing the Article and the Note to be published with false or misleading statements and his denials to Mr Vardy and Ms French of any wrong doing demonstrate that he lacked this necessary moral discipline to conduct himself honourably when honesty is at stake.

Under the heading "The Intrinsic Seriousness of Proven Misconduct qua fitness to practice medicine" the Tribunal wrote:

"There is force in the submission of senior counsel for the (Respondent) that whilst the proven misconduct under Complaints 9 and 10 does not directly relate to the practice of medicine, the relationship is so close that it might well fall into that category. Drugs form an important element in the arsenal of the practice of medicine and the great challenge of medical science is to find drugs which either cure or alleviate illness and which are free from serious side effects. Pharmacology is essential to almost every aspect of the practice of modern medicine and medical practice plays an important role in identifying and notifying the relevant governmental authority, the Australian Drug Evaluation Committee (ADEC) for the purpose of assessing adverse reactions to drugs. ADEC has developed a well known system for that purpose. Medical practitioners both assess adverse reactions in relation to their own patients and also assist in controlled trials of drugs. The need for careful observation, responsible reporting and meticulously honest response is central to the operation of that system and in this context honesty becomes an absolutely essential precept. In his position as the director of medical research at Foundation 41 and as an expert witness called in product liability cases in the United States on behalf of Plaintiffs Dr McBride held himself out as an experienced medical practitioner in the field of medical research particularly in the field of testing drugs for potential teratogenicity that are commonly prescribed for pregnant women.

As was noted by Dr Kola, medical research is the basis for a very wide range of critical decisions relating to the availability of drugs and the effectiveness of medical treatments. Scientific researchers, scientists and the wider community depend upon a trust placed in scientific researchers. Any breach of that trust is treated with the greatest concern by all responsible members of the scientific community and, where the breach concerns matters relevant to the practice of medicine, by all responsible members of the medical community. (vide Book 6, Introduction: 1). The Tribunal recognises the correctness of the (Respondent's) submission that:

Editors and reviewers of journals provide peer preview for those offering work for scientific publication. Articles which do not on their face indicate adherence to proper scientific method (in general) will be rejected. Where the article appears on its fact to be proper, improper changes are unlikely to be detected. This is a serious matter, as the publication of false information will pervert the scientific record. This may lead to the drawing of wrong conclusions as to the safety of drugs and may engender waste of private and public research funds in attempts to replicate experiments which have not been accurately described.

Dr McBride was in breach of trust in causing the publication of the Article and showed disregard for the true interests of Foundation 41. There was a relationship of trust between him and his research colleagues, his fellow board members and the members of the public who supported the Foundation with their charitable donations. He would have known that his conduct in including spurious date in reporting the experimental work of Foundation 41 would be considered by his research colleagues and any responsible member of the public as serious

scientific fraud and that the motive of concern for the public welfare could not justify the fabrication of material data to support a hypothesis.

The Tribunal assesses the intrinsic seriousness of the misconduct in Complaints 9 and 10 to be most grave, to be a public mischief and to bring into question his lack of good character and hence his fitness to practise medicine."

When it came to consider the question of the Appellant's motivation, the Tribunal wrote:

"Counsel for Dr McBride has submitted that Dr McBride's misconduct was not caused by a corrupt motive. He submitted that it was caused by misguided enthusiasm for a cause which had at its heart the promotion of human welfare and not the promotion of personal aggrandisement or the obtaining of financial gain, that his judgment was blinded by his zealous over enthusiasm for the cause on which he was then embarked. The Tribunal has dealt with the question of motivation. The Tribunal has found that his principal motive for the proven misconduct in relation to the falsifications in the Article was his desire to enhance the publishability of the Article. The Tribunal considers that the comment of Dr Humphrey that 'because Foundation 41 was dependent on charitable donation it would be under pressure to produce apparently socially relevant, rather than scientifically relevant, results, so as to justify its existence to the public' to have force. (vide Book 6, Evidence: 135).

Dr McBride has not acknowledged that he also included spurious data in his description of the experiment. He has acknowledged that misconduct of this kind would amount to scientific fraud (vide Book 6, Introduction: 2). Hence he has not claimed at this inquiry that he included the spurious data concerning the Langman rabbits in the Article because of his concern for public welfare and the need to alert the public, etc. It is difficult to imagine he could do so and retain any credibility. It should not be overlooked that in his evidence before the Inquiry Dr McBride conceded that if the data in the Article in relation to the Langman rabbits was fabricated a consideration of the public benefit in giving a warning of the risks of hyoscine would not justify the inclusion of this data."

(and after setting out the evidence to support the Appellant's making of the concession referred to, continued)

"In determining the question of motivation, the Tribunal is concerned to consider possible motives for the misconduct found by the Tribunal to be proved and not the limited misconduct Dr McBride has acknowledged.

Dr McBride's actions did not match his stated motive. The Tribunal notes that apart from causing the publication of the Article in a journal of limited interest to the medical profession no attempt was made by Dr McBride to make public in this country his concerns in relation to hyoscine as a possible teratogen. He was aware that a number of drug companies in Australia used the drug in anti nausea preparations supplied by them for the treatment of morning and motion sickness yet he never attempted to correspond with them and inform them of his concerns. He could have notified ADEC or corresponded with the editor of the Medical Journal of Australia of his concern about the potential hazards of hyoscine when ingested by pregnant women for the treatment of nausea and no satisfactory explanation was given to the Tribunal for his failure to do so given his conviction that the drug was dangerous when taken in early pregnancy.

His 'early warning to the public' was limited to publication of the Article in the AJBS. The Tribunal notes the comments of Dr Humphrey (an expert called in Dr McBride's case, vide Book 6, Evidence: 134):

"The scope of the AJBS was fundamental research in biochemistry, physiology, genetics, endrochrinology, reproductive biology and microbiology'. It is not a leading journal in any of these fields but the articles are usually of good class.

There is a great difference between deliberate fabrication of results which were not in fact obtained, for the purpose of supporting the author's argument and conclusions, which would be regarded by the scientific community as serious fraud, on the one hand, and the trimming of data for the purposes of presentation in a manner which does not affect the validity of the arguments and conclusions, on the other....

The Tribunal accepts that if Dr McBride's misconduct was limited to data trimming and misdescribing the method of experiment in relation to historical controls, etc., a claim that he had an altruistic motive of concern for the public welfare would require serious consideration. Whilst the Tribunal accepts that Dr McBride honestly held the belief that hyoscine is a potential teratogen and that belief has been sustained to the present day the Tribunal does not accept that Dr McBride honestly believed that he was acting with the high moral purpose claimed by him when he included spurious data in the writing of the Article."

When it came to consider the subject "Was the conduct an isolated episode?", the Tribunal commenced as follows:

"There is force in the submission of counsel for Dr McBride that the concept of 'not of good character' is not illustrated by isolated acts or omissions of personal misconduct but refers to inherent or intrinsic quality of the person. He submitted that the adverse findings of the Tribunal relate to 'one dishonest transaction' - ie the misreporting of the hyoscine experiments with the rabbits in the Article and the misleading statements published in the Note; that it is of significance that with the passage of time since the publication of the Article (ten years ago) there has been no manifestation of similar misconduct which suggests that the misconduct in question is not characteristic or typical of Dr McBride. Counsel submitted that the findings do not establish want of good character leading to a conclusion of unfitness to practise because they relate to one episode of honesty (sic) or one course of dishonest conduct."

Having done so, the Tribunal continued with the first of the two passages - the first being set out on at 35 to 37, and the second being set out on at 37 of his Judgment - upon which Kirby P together with the second passage reproduced on at 37 of his Judgment, relies to support his view - to which it will be necessary later to return - that, in concluding that the Appellant was "not of good character" in the context of his fitness to practice medicine, the Tribunal had had regard to matters to which it might not properly have had regard. (The passage which I have set out above, together with the first of the two passages reproduced in the Judgment of Kirby P represented the whole of the material written by the Tribunal in relation to the subject "Was the conduct an isolated episode?').

Having concluded its consideration of that subject, the Tribunal then turned to consider "The underlying qualities of character shown by previous and other conduct". In an extended passage in which the Tribunal referred at some length to the professional career of the Appellant, his distinguished community service on academic, scientific and health regulatory committees and the like, his international acclaim following his discovery of the link between Thalidomide and malformations in neonates, the Tribunal recorded inter alia:

"The Tribunal notes that apart from matters associated with the particulars found proven there have been no other matters brought to the Tribunal's attention which would reflect adversely on Dr McBride's character." and concluded:

"All in all there is much to admire in both the professional and private life of Dr McBride. From the testimonials a picture emerges of a warm hearted and generous man. An example is his generous gift to Foundation 41 from the prize money he was awarded by L Institut de la Vie and his voluntary work on behalf of the Foundation over many years. More importantly, his referees considered him to be an honest and trustworthy man."

Having thus recorded its views as to the various matters to which it had earlier referred, the Tribunal then considered to record its conclusion.

The Tribunal commenced this part of its "Reasons for Determination and Orders" as follows:

"The Tribunal has given anxious consideration to the material placed before it on the question of Dr McBride's character and with profound regret has come to the unanimous view that the particulars found proven in Complaints 9 and 10 establish to its comfortable satisfaction that Dr McBride is not of good character in the context of fitness to practise medicine.

The Tribunal notes that Dr McBride is highly regarded by those colleagues and acquaintances who provided testimonials as to his character and conduct and is accepted by them as trustworthy. The Tribunal acknowledges that Dr McBride is a highly qualified, experienced and competent senior obstetrician and gynaecologist and that the public have an interest in the retention of his services in the promotion and maintenance of public health, welfare and safety in the field of obstetrics and gynaecology. All that said, in the view of the Tribunal their appraisals as to his good character, etc and the beneficial attributes and qualities in his character acknowledged by the Tribunal are outweighed by the gravity and circumstances of the acts of dishonesty revealed in the proven misconduct.

Dr McBride's conduct in causing the publication of the Article in its fraudulent form was not the honest mistake of a naive man, ignorant in the ways of true science; it was not an error of judgment caused by an excess of zeal because of concern to get out an early warning to the public that hyoscine hydrobromide may be a teratogen. His acts were not made in haste; they were not made by a man in poor physical or mental health. His acts demonstrated a course of conduct of premeditated deception in the field of medical research and indicate a serious flaw or defect in his character, a trait of dishonesty."

There then follow two paragraphs - the second of the passages upon which Kirby P relies to support view that in coming to the conclusion which it did, the Tribunal had regard to matters to which it was not proper to have regard - which, as I have earlier noted, are reproduced at 37 of the Judgment of Kirby P, following which paragraphs the Tribunal continued:

"An explanation offered for Dr McBride's conduct in these episodes is that when he was confronted by Mr. Vardy with the allegations of scientific fraud he was thrown on the defensive and gave denials and made false assertions which he has maintained out of reluctant to publicly debase himself. The metaphor was used of 'mounting a tiger' which he has been riding ever since and from which he has been unable to dismount. The Tribunal accepts this to be the case but this explanation only highlights the fact that these episodes provided true tests of Dr McBride's character and indicate a continuing frailty of character, an inability to accept the responsibility of being truthful and trustworthy in accordance with the high ethical and moral standards of his profession.

Dr McBride's character mirrors the classic tragic character - the person of eminence in public life whose good deeds and interest in human welfare comment respect and admiration but who is brought down by a fatal flaw in character."

Once again, having regard to weight which it is sought later to put on the dissenting view of Professor Tracy, it is to be emphasised that this conclusion represented the unanimous view of the members of the Tribunal (see also the passage, which I have set out above, from that part of the "Reasons for Determinations and Orders" in which Professor Tracy recorded his conclusion that the Appellant's conduct "(d)emonstrated a sustained episode of misconduct which reflect(ed) adversely on Dr McBride's underlying character").

Ihave dealt with this aspect of the matter at some considerable length, for I am unable to share the view of Kirby P that, in dealing with this aspect of the complaints against the Appellant, the Tribunal misapplied the statutory test. In the light of the view so expressed by Kirby P it has, in my view, been necessary to demonstrate, first, that the Tribunal did not misdirect itself as to the matters to which it might, and should, have regard, and also that - contrary to the view expressed by Kirby P. that the adverse findings made by the Tribunal were of a limited character and of marginal relevance to the Appellant's qualification as a medical practitioner - the Tribunal was justified in finding, first, that the Appellant's conduct revealed a serious flaw or defect in his character - a trait of dishonesty - and, second, that that flaw bore directly upon the Appellant's qualifications as a registered medical practitioner.

I turn, next, to deal with the second of the grounds of appeal taken on behalf of the Appellant, namely, that the Tribunal "erred in law in taking into account in determining whether Complaints 9 and 10 were proved matters which were not particulars of those or of any complaint".

In the written submissions which were filed on behalf of the Appellant the following appear:

46. The Tribunal's conclusion that Dr McBride was not of good character was founded substantially on matters other than the particulars of complaint, and on that account is wrong in law.

47. The issue before the Tribunal was whether the complaints as particularised had been made out of to the requisite standard of proof. Whether or not Dr McBride was established to be 'not of good character' had to be determined by reference to the matters particularised in the complaints. Those matters, and only those matters, could be used to fund a finding that he was not of good character. Other misconduct on his part, whether related to the matters particularised or entirely unrelated, could not be used to found a finding of guilty of the complaint as particularised: see Smith v NSW Bar Association (1992) 176 CLR 256; R v Solicitor's Disciplinary Tribunal [1988] VR 757; Johns v Law Society of NSW [1982] 2 NSWLR 1, 6; O'Reilly v Law Society of NSW (1988) 24 NSWLR 204, 210, 224 and 225. The Tribunal recognised this in its 'tentative ruling', which was twice reargued and confirmed by the Tribunal (Bk 8/1.9-8.1), and in which it refused to allow new particulars to be added. Thus any conclusion that Dr McBride was not of good character had to be based solely on the Tribunal's findings on the particulars.

In the following paragraphs of the written submissions, reference is made to matters said to have been taken into account by the Tribunal when making its finding that the Appellant "was not of good character", such matters including the particular matters itemised by Kirby P at 37 of his Judgment. The submission then concludes with the following:

51. The above matters illustrate that the Tribunal's conclusion that Dr McBride was 'not of good character' was substantially founded upon matters which did not form part of the particulars of the complaint against him. The Tribunal's finding that Complaints 9 and 10 were proved depended on matters extraneous to the particulars, not just of those complaints, but of any complaint. The basis for the finding that these complaints were proved was not contained in the particulars. This was a denial of procedural justice and an error of law which vitiates the Tribunal's determination. "

Notwithstanding that these submissions have found favour with Kirby P, I am unable to accept them as correct.

With respect to those, such as Kirby P, who espouse a different view, I am unable to accept that the decision of the High Court establishes as a principle to be applied in disciplinary cases the principle that it is never open to a disciplinary tribunal to have regard to matters going to the conduct and character of the subject person unless those matters have been particularised in the relevant complaint. On the contrary, it seems to me to be clear that the burden of the judgments in the High Court was that, in the circumstances of that case, the Court of Appeal had denied Mr Smith procedural fairness when it proceeded to determine the result of the complaint without giving him an opportunity to be heard on the question whether or not a finding that he had lied to the Court of Appeal ought be made.

That this is so is, I suggest, made clear by the following passage in the joint Judgment of Brennan, Dawson, Toohey and Gaudron JJ to which I have earlier referred:

"But even if the evidence was sufficient to support the findings so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the findings should be made. In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding then determined by Mahoney and Meagher JJA that the appellant be disbarred were flawed. In the second hearing, evidence which might have affected the finding of deliberate lying was erroneously rejected. It follows that the affirmation of the finding that the appellant lied and of the order that he be disbarred cannot stand. "

(see also the passage from the Judgment of Deane J which I have set out above.)

If the burden of the Judgment in the High Court in Smith v New South Wales Bar Association is as I have suggested, then, as it seems to me, it cannot, in the present case, be said that the Appellant was denied procedural fairness by the manner in which the complaints were heard and determined. I say this since a detailed consideration of the complaints and the judgments of the Tribunal in relation to, in particular, "the scientific fraud complaints" and the Tribunal's "Reasons for Determinations and Orders" make the following matters clear:

1. that the burden of "the scientific fraud complaints" was, not merely that the Appellant had submitted articles or provided depositions, or given evidence, which articles and which depositions or evidence were, or was, false and misleading, but that, insofar as those articles or depositions, or that evidence, were, or was false and misleading, the Appellant was aware of the falsity, or was reckless or indifferent to the truth or falsity, of the matters in question;

2. that insofar as concerned "The Note" submitted to the Australian Journal and of Biological Sciences, it was alleged that the reason assigned by the Appellant for submitting "The Note" was false;

3. that, while denying that matters were material, or asserting that his conduct in particular cases was not deliberate, the Appellant - albeit reluctantly, and, at times, only after extended pressure - conceded that many of the matters particularised in relation to "The Article" and "The Note" were in fact false.

Insofar as the Appellant seems to submit that, in the particular passages to which Kirby P has referred in the course of his Judgment, the Tribunal has otherwise had regard to matters, which were irrelevant to its final determination, I would, with respect, suggest that this is not so. In this regard, I would draw attention to two matters, they being:

1. in its Judgment in relation to "the scientific fraud complaints" the Tribunal found - to put the matter shortly - that the Appellant deliberately made false statements in "The Article" in relation to the experimental data, deliberately misreported the method of an experiment and included spurious data; and further, that the explanation for the Appellant's conduct was his desire to strengthen the appearance of the experiment as a properly designed experiment in order to enhance the publishability of the article and hence provide support for his hypothesis that hyoscine may be a teratogen. In addition, the Tribunal had found that the Appellant had caused to be published in "The Note" statements which were misleading and which he knew to be misleading, the explanation for that conduct being that he did not wish to make public the fact that members of the Research Advisory Committee of Foundation 41 had considered a complaint by those said to be the co-authors of the Article and that as a result that the Committee had directed that there be a retraction of the relevant published material;

2. those findings having been made, the Tribunal's task was therefore: (a) to determine whether in the light of all other relevant material the Appellant was "not of good character"; and

As will, I think, be apparent from what I have earlier recorded - in particular, those parts of the submissions of the Appellant's counsel to the Tribunal, which I have set out above - both parties were of the view first, that a determination as to whether or not the Appellant was "not of good character" needed to be made as at the time when the Tribunal considered the application; and, second, that, in determining whether or not the past conduct of a dishonourable kind, if found to be established, justified a determination that the Appellant was, at the time of the Tribunal's considering the matter, "not of good character", the Tribunal was required to have regard to a variety of matters - those referred to in the Tribunal's "Reasons for Determinations and Orders" which I have earlier set out - which matters included matters occurring both prior to, and after, the conduct the subject of the complaint. Nor should it go unremarked that a similar approach was adopted on behalf of the Appellant in the written submissions which were

filed in support of his Appeal. If any demonstration of that need to be shown, I merely record that in those written submissions may be found such submissions as the following:

"33. Insofar as conduct is relied upon as proof of character that conduct must be evaluated in the context of the motive which accompanies it: Ex parte Tziniolis (1967) 84 WN (Pt2) (NSW) 275301.2-4. Misconduct driven by greed or some other base or corrupt motive speaks far worse of its perpetrator's character than the misconduct of the well intentioned zealot. The Tribunal found that Dr McBride's principal motive for the proven misconduct was a desire to enhance the publishability of the AJBS article (Book 7 Conclusion: 1.4). The Tribunal accepted that Dr McBride honestly held the belief that hyoscine was a potential teratogen, and has sustained that belief to the present day (Book 8/15.2-4, 17.2-3).

In an evaluation of character, conclusions cannot readily be drawn from actual conduct without knowing the motive which impelled them. It was important in order to evaluate whether the proved misconduct was illustrative of a serious defect of character to know what motivated it. While rejecting the motive which the Appellant propounded, the Tribunal found no base or corrupt motive.

All that remains is a genuine belief that hyoscine is a dangerous drug and a desire to obtain publication of 'socially relevant results' to justify the existence of the charity, Foundation 41. Such motives do not justify a conclusion that Dr McBride's relevant conduct showed him to be not of good character.

34. The conduct in question, as an indicia (sic) of character must be viewed in the light of the passage of time: Herron v McGregor (1986) 6 NSWLR 246, 258; Gill v Walton (1991) 25 NSWLR 190, 201. The significance of this submission in the present case is that there is no suggestion that the alleged defect of character has ever manifested itself anywhere else in Dr McBride's conduct apart from matters which are the direct sequelae of or immediately related to the original deception, and despite the passage of a decade since. This passage of time, without any further manifestation of the alleged "defect of character' in any other aspect of his affairs, is strongly suggestive that dishonesty is not characteristic of it."

(if I may be forgiven for saying so, such submissions as these demonstrate a significant degree of inconsistency of approach on the part of the Appellant, for, if subsequent good conduct can be relied upon in order to test whether or not past misconduct is evidence that a person is "not of good character', it is difficult to see why subsequent acts of dishonesty cannot be relied upon for the purpose of confirming that past acts of misconduct evidence that a person is "not of good character".)

It is, I think, made clear by the various passages from the Tribunal's "Reasons for Determinations and Orders" which I have set out above, that, when it came to the task of determining whether, in all the circumstances, the Appellant then was "not of good character", it proceeded upon that task in the manner which I have suggested above, that is, it sought to determine whether, in the light of the Appellant's proven misconduct, and having regard to all the relevant factors, the Appellant was then to be regarded as being "not of good character". In so proceeding upon its task, the Tribunal, in my view, did not fall into error; in particular the Tribunal, in my view, did not take into account matters which were irrelevant to the task upon which it was then embarked.

Conscious though I am of the view to the contrary which has been expressed by Kirby P, I would, with respect, suggest that His Honour's attempted demonstration that this was so fails in its object, for, as I have sought to demonstrate, the first of the passages upon which Kirby P relies to support his conclusion appears in that part of the "Reasons for Determinations and Orders" which deals with the subject "Was the conduct an isolated episode?", and that passage follows immediately upon the recital of the submission of the Appellant's counsel that the conduct ought so to be regarded. Further, as I have sought to establish, the second of the passages upon which Kirby P relies for this purpose, appears under the title "Conclusion" and follows upon the statement by the Tribunal as to the view which the Tribunal has taken on the question whether or not the Appellant was "not of good character".

I turn, finally, to the third ground of Appeal taken on behalf of the Appellant.

By way of introduction it is convenient to record that, insofar as is relevant to this ground of appeal, the Medical Practice Act 1992 contains the following provisions:

"60. A Committee or the Tribunal may exercise any power or combination of powers conferred on it by this Division if it finds the subject matter of a complaint against a person to have been proved or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Committee or Tribunal.

61.(1) A Committee or the Tribunal may do any one or more of the following:

(b) order that the person seek and undergo medical or psychiatric treatment or counselling;

(c) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration;

(d) order that the person complete such educational courses as are specified by the Committee or Tribunal;

(e) order that the person report on his or her medical practice at the times, in the manner and to the persons specified by the Committee or Tribunal:

(f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Committee or Tribunal.

64.(1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):

(a) that the person is not competent to practise medicine: or

(b) that the person is guilty of professional misconduct.

90.(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against:

(a) a decision of the Tribunal with respect to a point of law; or

(b) the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Pt4.

91.(1) In determining the appeal, the Supreme Court may:

(b) make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act.

91.(2) If the Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Division 3 may not be made until after a specified time.

and that Schedule 5 - Savings and Transitional Provisions - of the Act contains the following:

"11.(1) The provisions of the 1938 Act continue apply to and in respect of a complaint made, or an inquiry or appeal commenced, under that Act and pending immediately before the repeal of that Act.

(2) Any order, decision or determination resulting from an inquiry or appeal to which this clause applies is taken to have been made under the corresponding provisions of this Act and is to have effect accordingly."

As has already been noted above, in contrast to the right of appeal in relation to decisions or determinations of the Tribunal - which right of appeal is limited to a question of law - the right of appeal in relation to the exercise by the Tribunal of any disciplinary power is not so limited, the appeal being a general appeal in the nature of a re hearing - at which, with the leave of the Court, further evidence might be tendered - the Court being empowered to "make such order as it thinks proper having regard to the merits of the case and the public welfare".

I confess to having found this aspect of the Appeal a very difficult and troubling one.

It is as well to remind oneself that although the exercise by the Tribunal, or by the Court on appeal, of the powers contained in s61, s64 is at times described - loosely - as involving the imposition of "a penalty" the primary purpose for which those powers have been given is - as is the case in relation to the powers conferred on the Disciplinary Tribunal and the Court by the provisions of the Legal Profession Act 1987 - to protect the public, not to punish the practitioner, "the public" for this purpose being in my view, not limited to members of the lay public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, but also others - whether fellow practitioners, or members of the lay public - whose interests may be detrimentally affected by the conduct of the practitioner in question.

"Accepting the conclusion of the Tribunal in respect of the limited matters in respect of which Dr McBride has been found to have been dishonest, and accepting for present purposes (contrary to my finding) that this shows him to be 'not a person of good character' I have concluded with Professor Tracy that the appropriate power which the merits of the case and the public welfare require is an order of reprimand, not removal of Dr McBride's name from the Register.

My reasons for so concluding are very similar to those of Professor Tracy.

Where the Court concludes that the conduct is isolated, unlikely to recur and not such as to affect the functions of the practitioner, it will not be in the public interest to deny the practitioner the opportunity of practising the profession. This was the conclusion reached in Ziems, Fraser and Richter it is the conclusion which I would reach in this case."

(it should be noted that, while the power to caution, or reprimand, was expressly conferred on the Tribunal by s32R(1)(a) of the 1938 Act there is no such power conferred on the Tribunal by s60 to s65 of the 1992 Act.)

I regret that I am unable to share what appears to be the view of Kirby P, that is, that all that has been found against the Appellant is one instance of dishonesty, that conduct occurring a long time ago, and that there is no real likelihood of such conduct recurring. Nor am I able to share the view of Kirby P and Professor Tracy that, in all the circumstances of the case, no order beyond that of a reprimand is called for.

On the contrary, I share the view of the Tribunal - including, for this purpose, Professor Tracy - that what was found against the Appellant was a sustained course of conduct involving premeditated deception in the field of medical research, which course of conduct evidenced a serious flaw or defect in his character, "a trait of dishonesty". Nor is it without point to note that, while the Appellant both denied the conduct with which he was charged and sought to submit that even if that conduct were found against him, it did not provide evidence that he was "not of good character", he did not seek to submit that, if it be found, first, that he had been guilty of such conduct and, second, that such conduct indicated that at the time he was not of good character, subsequent events would demonstrate that he had reformed. Far from subsequent events having established that the Appellant had reformed so that, at the time of the hearing by the Tribunal, he could then be regarded as being of good character, those events, in my view, would seem to indicate that, even now, the Appellant lacks any real insight into the gravity of what he has done.

That this was the basis of the approach taken by the majority of the Tribunal when determining what was the appropriate nature of the order to be made against the Appellant is indicated by the following passage in the "Reasons for Determinations and Orders" of the Tribunal:

"In determining what would be an appropriate order under s32 of the Act the Tribunal is required to consider the protection of the public and not what would be a condign punishment to impose on the practitioner for his past misconduct. The Tribunal should look to the future to determine whether any risk is posed to public welfare if Dr McBride were to remain in practice by reasons of its finding that Dr McBride is not of good character.

Although the proven misconduct occurred some eight years prior to the lodgment of the Complaints, the Tribunal is required to consider the present fitness of Dr McBride to continue to practise medicine. In assessing present fitness to practise it is necessary to consider the conduct of Dr McBride over the intervening years up to the present time to determine whether, since the episodes of proven misconduct, he has retrieved his good character and is now a practitioner the Tribunal can with confidence hold out to the public and the profession as trustworthy.

In considering his present fitness to practise medicine the Members of the Tribunal by a majority (Professor GD Tracy dissenting) are of the view that they are unable to repose in him their trust and confidence to be scrupulously honest and straightforward should a conflict arise in the future between his duty to be honest and self interest. The majority do not consider the likelihood of any such occurrence to be exceptionally remote. The quality of honesty is a critical quality required in the character of a medical practitioner. There is the requirement of total trust between patient and practitioner. Moreover, a relationship of trust exists between a practitioner and his paramedical staff and all who may assist the

practitioner in the care land treatment of a patient. These are delicate relationships and in the practice of medicine it is essential that a practitioner command the confidence and respect of his peers as one who can be trusted to act with complete honesty and candour.

The tribunal is charged by the Parliament with the responsibility of determining a complaint that a practitioner lacks the requisite good character for the practice of medicine in this State and for disciplining practitioners for conduct that undermines public confidence in the integrity of the profession. Dr McBride had an obligation as a practitioner called before the Tribunal to answer directly and honestly all questions as may properly be asked of him touching or concerning the Complaints. Dr McBride failed to fulfil his obligations to the Tribunal. The Tribunal is of the view that throughout the course of the Inquiry Dr McBride demonstrated that he had no insight or real understanding of the basic requirement that a medical practitioner act in accordance with the highest degree of integrity. Examples of Dr McBride's conduct to illustrate this point have been given by the Tribunal in Book 7. A further example (not referred to in Book 7) is Dr McBride's action during the course of the inquiry in giving a written opinion as an expert witness on behalf of a plaintiff in proposed US litigation in which the claim was to be made that the plaintiff's birth defects were caused or contributed to by his mother's ingestion of certain drugs during her pregnancy. Dr McBride concluded his report (Exh Y, Complaint 10: Tab 5) in this way:

It is my opinion, based upon my education, training and experience, and using PROPER SCIENTIFIC METHODOLOGY, that to a reasonable degree of medical probability, [the plaintiffs] birth defects were caused or contributed to by [the plaintiff's mother] ingestion of the above listed drugs, singly or in combination, during her pregnancy. (emphasis added)

This opinion was based in part on a listing of documents reviewed and appended to the report. The listing included references to the literature and included the Article and the Note. The report was dated 4 September 1989, a date after the service of the Complaints on Dr McBride and shortly before the commencement of the Inquiry into those Complaints by the Tribunal. In his statement to the Tribunal (Exh 9 - vide Book 6, Evidence: 113) Dr McBride acknowledged with regret that he had taken 'short cuts' in writing the Article for publication which a scientist should not take and that it contained false and misleading statements. Yet in his report he relied upon the Article and the Note to support his qualifications to give an opinion and asserted that he used 'proper scientific methodology' in his experimental work. Another example of lack of insight or understanding of the obligation to be honest is illustrated in his conduct referred to by the Tribunal in Book 7, Overview: 19. There the Tribunal commented on the admission of Dr McBride that he invented the data of resorptions in the control group of rabbits for the purpose of Mr English's statistical exercise which was required by the editors of the journal to be included in the Article for publication. When questioned for an explanation of his conduct in inventing this data he attempted to justify his conduct in a way which indicated intellectual dishonesty.

Dr McBride's conduct, his statements and his writings which have been reviewed by the Tribunal, indicate to the majority members of the Tribunal a serious degree of intellectual and moral dishonesty. He has exhibited and still exhibits a degree of casuistry which is incompatible with a real insight and understanding of the obligations required of a medical practitioner and incompatible with membership of an honourable and self respecting profession.

The majority conclude that in the light of the findings and the conclusion reached in relation to Dr McBride's lack of good character public confidence in the integrity of the profession would be seriously undermined if he were to remain a member of the profession. Accordingly, the majority of the Tribunal conclude the appropriate order is for the name of the practitioner to be removed from the Register. "

Far from that passage revealing error on the part of the majority of the Tribunal, I consider the approach which they took was correct, as also do I - albeit with the greatest regret, for, had it not been for the Appellant's proven misconduct, he would have been able to look forward to retiring "(bearing) his blushing honours thick upon him" - consider that the conclusion to which they came was correct.

For these reasons, the Orders which I would favour are as follow:

2. ORDER that the Appellant pay the Respondent's costs of the Appeal.

3. DIRECT the Registrar to relist the Cross Appeal with expedition.

1. Appeal dismissed.
2. Appellant to pay the respondent's costs; and
3. Direct that the Registrar relist the cross appeal with expedition. APPENDIX Schedule of findings - Complaint 9 Complaint 9 Is not of good character in that the Practitioner has, in relation to medical research, made, published, or caused to be published statements which were false and misleading. Particulars The Practitioner prepared an article entitled "Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo" which was published in Australian Journal of Biological Science (1982) Vol 35 at 173 ("the article"). The article was false and misleading in the following respect: (a) The line of data contained in "Table 1 "'(at 176) relating to 200 micrograms of drug injected into eggs was not a result obtained from the experiment described in the article. Finding Book 7: The Tribunal finds this particular not proved. THE EVIDENCE DOES NOT ESTABLISH TO THE TRIBUNAL'S SATISFACTION THAT THE 200UG LINE OF DATA WAS NOT PRODUCED IN A CONTINUING EXPERIMENT AS DESCRIBED BY DR MCBRIDE IN HIS EVIDENCE. Book 8: The Tribunal finds this particular not proved. Particular (b) Figure 1 (at 175) is a photograph of a malformed chicken foetus obtained otherwise than in the course of the experiment described in the article. Finding Book 7: The Tribunal finds this particular not proved. THE EVIDENCE DOES NOT ESTABLISH TO THE TRIBUNAL'S SATISFACTION THAT THE AJBS FIGURE 1 WAS NOT A PHOTOGRAPH OF AN EMBRYO PRODUCED IN THE COURSE OF THE "200UG EXPERIMENT" DESCRIBED IN THE ARTICLE. Book 8: The Tribunal finds this particular not proved. Particular

(c) Figure 2 (at 175) is a is a photograph of a malformed chicken foetus obtained otherwise than in the course of the experiment described in the article.

Book 7: The Tribunal finds this particular not proved. THE EVIDENCE DOES NOT ESTABLISH TO THE TRIBUNAL'S SATISFACTION THAT DR MCBRIDE INCLUDED THE FIGURE IN THE ARTICLE WITH THE INTENTION TO DECEIVE OR MISLEAD. ON THE EVIDENCE PRESENTED THE TRIBUNAL ACCEPTS THE RESPONDENT'S SUBMISSION TO BE CORRECT THAT DR MCBRIDE, AT WORST, WAS GUILTY OF AN INNOCENT MISTAKE. Book 8: The Tribunal finds this particular not proved.

(i) "24 virgin New Zealand white rabbits does (University of New South Wales Animal Colony) were used in the experiment (at 174).

(ii) "Eight control does produced 54 normal kittens (at 174 and 176). The statements were false and misleading in that no more than sixteen does and no contemporaneous controls were used.

Book 7: The Tribunal finds the particulars in (i) and (ii) proved. Dr McBride admitted that no contemporaneous controls were used and that the statement in (ii) is capable of suggesting that contemporaneous controls were used and is therefore misleading but he claimed it was not materially so. In the view of the Tribunal the statement in (ii) in the context in which it appears can only be read as meaning "eight contemporaneous control does" and was intended by Dr McBride that it should be so read by any reader of the Article, in particular any referee reviewing the Article for publication. The Tribunal finds the statement was misleading in a material respect AND DR MCBRIDE INTENDED THAT IT MISLEAD.

Book 8: The Tribunal finds the particulars in (i) and (ii) proved. Dr McBride admitted that no contemporaneous controls were used and that the statement in (ii) is capable of suggesting that contemporaneous controls were used and is therefore misleading but he claimed it was not materially so. In the view of the Tribunal the statement in (ii) in the context in which it appears can only be read as meaning "eight contemporaneous control does" and was intended by Dr McBride that it should be so read by any reader of the Article, in particular any referee reviewing the Article for publication. The Tribunal finds the statement WAS FALSE AND misleading in a material respect.

(e) The article states that the treated does were killed and the foetuses "sectioned to inspect the brain, palate, thoracic and abdominal organs": (at 174). The statement was false and misleading in that the foetuses were not sectioned.

Book 7: The Tribunal finds the particular proved. Dr McBride admitted the statement was false and misleading but claims it was neither materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made with reckless indifference as to whether it was true.

Book 8: The Tribunal finds the particular proved. Dr McBride admitted the statement was false and misleading but claims it was neither materially or intentionally so. The Tribunal finds that the statement dealt with a material matter

and that it was made EITHER WITH KNOWLEDGE OF ITS FALSITY OR with reckless indifference as to whether it was true OR NOT.

(f) The article states that eight rabbits (Nos 1-8) received scopolamine hydrobromide by "intramuscular injection". The statement is false and misleading in that the rabbits received the drug by intraperitoneal injection.

Book 7: The Tribunal finds the particular proved. Dr McBride admits that if some rabbits received the drug by intraperitoneal injection (which he does not know and admit) the statement was false and misleading but says it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter BUT WAS NOT MADE WITH THE INTENTION TO DECEIVE OR MISLEAD.

Book 8: The Tribunal finds the particular proved. Dr McBride admits that if some rabbits received the drug by intraperitoneal injection (which he does not know and admit) the statement was false and misleading but says it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter AND THAT IT WAS MADE EITHER WITH KNOWLEDGE OF ITS FALSITY OR WITH RECKLESS INDIFFERENCE AS TO WHETHER IT WAS TRUE OR NOT.

(g) The article states that six of eight rabbits given injections survived and produced 38 foetuses. The statement is false and misleading in that of the rabbits involved in the experiment, no more than five became pregnant.

Book 7: The Tribunal find the particular proved. Dr McBride denies that no more than five rabbits given injections became pregnant. The Tribunal accepts Mr Vardy's evidence and rejects Dr McBride's evidence as being unreliable on this issue. The Tribunal find the particular proved. Dr McBride denies that no more than five rabbits given injections became pregnant. The Tribunal accepts Mr Vardy's evidence and rejects Dr McBride's evidence as being unreliable on this issue.

(h) The article states that "the day of mating was designated gestation day one" (at 174.40) and that rabbits were injected on days 10 - 14 inclusive (table 2). The statement is false and misleading in that rabbits were dosed by injection on days 12-16, 11-15 and 11-14.

Book 7: The Tribunal finds the particular proved. Dr McBride admits that if rabbits were dosed by injection on the days particularised then the statement was false and misleading but claims it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made with reckless indifference as to whether it was true.

Book 8: The Tribunal finds the particular proved. Dr McBride admits that if rabbits were dosed by injection on the days particularised then the statement was false and misleading but claims it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made EITHER WITH KNOWLEDGE OF ITS FALSITY OR with reckless indifference as to whether it was true OR NOT.

(i) The article states that injections were given in equal doses "at 12 hourly intervals (8.00 am and 8.00 pm)" (at 176, footnote A). The statement is false and misleading in that injections were not given at 12 hourly intervals and were not given at the times specified.

Book 7: The Tribunal finds the particular proved. Dr McBride admits that if injections were not given as stated in the Article then the statement was false and misleading but says it was not intentionally or materially so. The Tribunal finds that the statement dealt with a material matter and that it was made with reckless indifference as to whether it was true.

Book 8: The Tribunal finds the particular proved. Dr McBride admits that if injections were not given as stated in the article then the statement was false and misleading but says it was not intentionally or materially so. The Tribunal finds that the statement dealt with a material matter and that it was made EITHER WITH KNOWLEDGE OF ITS FALSITY OR with reckless indifference as to whether it was true OR NOT.

(i) rabbit No 6 died "on second day of medication, 10 min after injection (at 174.5); and

(ii) rabbit No 7 died "30 min after the first injection" (at 174.5). The statements are false and misleading in that:

(iii) rabbit No 6 was found dead on the fourth day after the last medication was received and the time of death was not established;

(iv) rabbit No 7 died on the fourth day of medication.

Book 7: The Tribunal finds the particulars (i - iv) proved. Dr McBride does not admit the statements were false and misleading but says that if they were they were not intentionally or materially so. The Tribunal finds that the statements dealt with a material matter and that were made with reckless indifference as to whether they were true.

Book 8: The Tribunal finds the particulars (i - iv) proved. Dr McBride does not

admit the statements were false and misleading but says that if they were they were not intentionally or materially so. The Tribunal finds that the statements dealt with a material matter and that were made EITHER WITH KNOWLEDGE OF THEIR FALSITY OR with reckless indifference as to whether they were true OR NOT.

(k) The article states that eight rabbits (Nos 9 - 16 Inclusive) were given scopolamine hydrobromide by oral ingestion in New South Wales. The statement is false and misleading in that:

(i) two rabbits (Nos 15 and 16) were not part of the experiment. Statements in the article, which include data provided by rabbits Nos 15 and 16, are false and misleading.

(i) If rabbits Nos 15 and 16 were part of the experiment, the following statements in the article are false and misleading, namely, that all does. come from the University of NSW: were fed rabbit chow (Allied Mills Ltd, Rhodes, NSW) were supplied with water from the Sydney City Water Supply.

Book 7: The Tribunal finds the particular (k)(i) proved. Dr McBride claims that rabbits 15 and 16 were part of the experiment and were treated by Dr Langman at the University of Virginia. The Tribunal finds that the experimental data in relation to these two rabbits were not obtained from Dr Langman, the data in relation to these two rabbits are spurious. It is unnecessary to make a finding in relation to the particular (k)(ii) in view of finding (k)(i) above. The Tribunal notes that on the premise that the data in relation to rabbits Nos 15 and 16 were part of an experiment conducted by Dr Langman, Dr McBride admits the relevant statements were false and misleading.

Book 8: The Tribunal finds the particular (k)(i) proved. Dr McBride claims that rabbits 15 and 16 were part of the experiment and were treated by Dr Langman at the University of Virginia. The Tribunal finds that the experimental data in relation to these two rabbits were not obtained from Dr Langman, the data in relation to these two rabbits are spurious. It is unnecessary to make a finding in relation to the particular (k)(ii) in view of finding (k)(i) above. The Tribunal notes that on the premise that the data in relation to rabbits Nos 15 and 16 were part of an experiment conducted by Dr Langman, Dr McBride admits the relevant statements were false and misleading.

(1) The article states that rabbit No 9 received a daily dose of 495 micrograms per kilogram. The statement is false in that rabbit No 9 received a daily dosage of 895 micrograms per kilogram.

Book 7: The Tribunal finds the particular proved. Dr McBride admits that insofar as the Article suggests that rabbit 9 received an average daily dose of exactly 495 micrograms per kilogram, the statement is misleading but does not admit the rabbit received a daily dosage of 895 micrograms per kilogram, rather this was a rough approximation of the dosage and an inaccurate one. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be false and misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true.

Book 8: The Tribunal finds the particular proved. Dr McBride admits that insofar as the Article suggests that rabbit 9 received an average daily dose of exactly 495 micrograms per kilogram, the statement is misleading but does not admit the rabbit received a daily dosage of 895 micrograms per kilogram, rather this was a rough approximation of the dosage and an inaccurate one. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be false and misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true OR NOT.

(m) The article states that rabbit No 11 weighed 4.02 kilograms. The statement is false and misleading in that rabbit no 11 weighed 4.62 kilograms.

Book 7: The Tribunal finds the particular proved. Dr McBride admits the statement was false and misleading but says it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true.

The Tribunal finds the particular proved. Dr McBride admits the statement was false and misleading but says it was not materially or intentionally so. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true OR NOT.

(n) The article states that rabbit No 12 received a daily dosage of 582 micrograms per kilogram. The statement is false and misleading in that data collected during the experiment indicated that rabbit No 22 received a daily dosage of 1,587 micrograms per kilogram.

Book 7: The Tribunal finds the particular proved. Dr McBride admits that insofar as the Article suggests that rabbit No 12 received an average daily dose of exactly 582 micrograms per kilogram, the statement is misleading. He admits that the laboratory notes record the rabbit received a daily dosage of 1,587 micrograms per kilogram and that the rabbit book and raw data record the rabbit received a daily dosage of 1,582 micrograms per kilogram but does not admit the rabbit received a daily dosage of 1587 or 1582 micrograms per kilogram. He claims these records are inaccurate estimates only. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be false and misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true.

Book 8: The Tribunal finds the particular proved. Dr McBride admits that insofar as the Article suggests that rabbit No 12 received an average daily dose of exactly 582 micrograms per kilogram, the statement is misleading. He admits that the laboratory notes record the rabbit received a daily dosage of 1,587 micrograms per kilogram and that the rabbit book and raw data record the rabbit received a daily dosage of 1,582 micrograms per kilogram but does not admit the rabbit received a daily dosage of 1587 or 1582 micrograms per kilogram. He claims these records are inaccurate estimates only. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be false and misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true OR NOT.

(0) The article states that rabbit No 14 received a daily dosage of 424 micrograms per kilogram.

The statement is false and misleading in that data collected during the experiment indicated that rabbit No 14 received a daily dosage of 580 micrograms per kilogram.

Book 7: The Tribunal finds the particular proved. Dr McBride admits that insofar as the Article suggests that rabbit No 14 received an average daily dose of exactly 580 micrograms per kilogram, the statement is misleading. He admits that the rabbit book and raw data record the rabbit received a daily dosage of 624 micrograms per kilogram but does not admit the rabbit received a daily dosage of 624 micrograms per kilogram, he claims this record is an inaccurate estimate only. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be misleading. The Tribunal finds that the

statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true.

Book 8: The Tribunal finds the particular proved. Dr McBride admits that insofar as the Article suggests that rabbit No 14 received an average daily dose of exactly 580 micrograms per kilogram, the statement is misleading. He admits that the rabbit book and raw data record the rabbit received a daily dosage of 624 micrograms per kilogram but does not admit the rabbit received a daily dosage of 624 micrograms per kilogram, he claims this record is an inaccurate estimate only. Moreover, he claims the statement did not deal with a material matter and was not made with the intention that it be misleading. The Tribunal finds that the statement dealt with a material matter and that it was made either with knowledge of its falsity or with reckless indifference as to whether it was true OR NOT.

Counsel for the Appellant: JR Sackar QC / P LeG Brereton Instructed by: Blake Dawson Waldron Counsel for the Respondent: J Basten QC

Instructed by: Director of Complaints Unit, NSW Health Department