Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215

8. It was open to the Tribunal to decide, as it did, that the respondent's commission of the offences should not form a bar to his registration. It was open to the Tribunal also to decide, after deliberation, that his false evidence should not form a bar. The Tribunal, cannot have been justified, however, when making an assessment of the respondent's fitness to be registered as a medical practitioner, simply to disregard his knowingly giving false evidence on oath in support of his application for registration. If the Tribunal is prepared to find that the public interest would be properly served in allowing the respondent to be registered as a medical practitioner, even though he gave dishonest evidence of that kind, so be it; but, if so, the Tribunal should be seen by the public to make such a finding deliberately and to justify it. The matter should be remitted to the Tribunal accordingly.

19. The respondent was registered as a medical practitioner on 9 December 1971. On 25 July 1986 the Medical Board of Victoria ("the Medical Board") issued a notice under s.17 of the Medical Practitioners Act 1970 of the intention of the Medical Board to inquire into whether the respondent had been guilty of infamous conduct in a professional respect in relation to his treatment of a number of patients. If the Medical Board was satisfied of the respondent's guilt, it was empowered to remove his name from the medical register, reprimand him or suspend his registration. The respondent sought to adjourn the inquiry until certain civil and criminal proceedings had been completed. Eventually he undertook to the Supreme Court not to practice as a medical practitioner until the determination of the inquiry in return for the undertaking by the Medical Board not to proceed with the inquiry until 1 March 1987.

22. On 31 December 1987 the respondent's name was removed from the medical register as a consequence of his failure to renew his annual registration. Since that date the respondent has not been registered to practice medicine.

25. On 12 February 1988 the respondent pleaded guilty in a Magistrates' Court to 31 offences of presenting for payment Medicare assignment forms which contained false or misleading particulars relating to medical services he said he had performed.

28. On 26 February 1996 the respondent lodged an application with the appellant for registration as a medical practitioner pursuant to s.7 of the Medical Practice Act 1994 ("the Act"). On 16 November 1997 the appellant rejected the application. This determination was reviewed by the Victorian Civil and Administrative Tribunal ("the Tribunal") pursuant to s.60 of the Act. In exercising its review jurisdiction the Tribunal has all the functions of the original decision maker: s.51(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998. The review was conducted as a re-hearing of the respondent's application. The re-hearing commenced on 13 July 1998. The Tribunal's decision was handed down on 15 September 1998.

31. Section 7(1) of the Act provides:

"(1) The Board must grant general registration as a medical practitioner to an applicant, if -

(a) the applicant is qualified for registration under section 6; and

(b) there are no grounds under sub-section (2) under which the Board may refuse to grant registration to the applicant; and

(c) the circumstances are such that sections 8 and 9 do not apply; and

(d) the applicant has paid the fee determined by the Board under section 5(2)(b)."

The appellant accepted before the Tribunal that the respondent satisfied these criteria save for the existence of grounds under sub-s.(2). The sub-section provides, so far as is presently relevant:

"(2) The Board may refuse to grant registration to an applicant on any one or more of the following grounds -

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

(c) that the applicant has been found guilty of an indictable offence in Victoria or an equivalent offence in another jurisdiction; or

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

(e) that the applicant has previously been registered under this Act or any corresponding previous enactment and during the course of that registration has had proceedings under Part 3 of this Act or similar proceedings under the previous enactment brought against her or him and those proceedings have never been finalised; ..."

46. Before the Tribunal the appellant relied upon the existence of grounds under s.7(2) for refusing to grant registration to the respondent. The Tribunal found that 29 of the offences under the Health Insurance Act of which the respondent had been convicted on 12 February 1988 were indictable offences and thus within s.7(2)(c). The Tribunal said:

"Those offences are serious offences. Nevertheless, they were dealt with summarily and the convictions are now more than ten years old. In such circumstances, it appears to us that the fact of conviction of these indictable offences could not stand alone as a ground for refusing to McGoldrick a registration as a medical practitioner."

50. The Tribunal also found that the respondent had been found guilty of offences which were relevant to the ground set out in s.7(2)(d). On 19 November 1996 the respondent was convicted in a Magistrates' Court of four offences against the Act consisting of taking or using the title of a registered medical practitioner, carrying out an act required to be carried out by a registered medical practitioner and forging and uttering prescriptions.

53. The offences were committed in relation to a patient of Supercare Clinics, a practice conducted by a company of which the respondent was a director. On 14 October 1995 one Mary Montague attended at the Richmond Supercare Clinic. The respondent identified himself to Montague as Dr. Fred Bentley. He treated her by injecting her with Maxalon. He made out a prescription for Montague for medication known as Proladone. The prescription was in the name of Dr. F. Bentley, a female employed at the Clinic with whom according to the Tribunal, McGoldrick "shared a relationship".

56. The respondent gave evidence in July 1998 to the Tribunal seeking to minimise the breaches. When he was asked by his counsel as to his use of the name "Bentley", he said:

"Whenever I'm with the children, because their name is Bentley, and - especially round that time, at creches and things like that. They would - I would pick them up and I was always Ian Bentley to the people that I had to deal with. That was part of an agreement - informal agreement between Frederique and I to try and reduce any confusion the children had about their identity."

His evidence was largely rejected by the Tribunal, who said:

"We are concerned that McGoldrick does not appear to fully understand the seriousness of the circumstances under which these offences took place. We do not accept his explanation that the patient was in such distress that he felt required to treat her as a 'humanitarian act'. Nor do we accept that his use of the name 'Bentley' or his use of Dr. Bentley's prescription pad was as innocent as he suggests it was. Likewise, we do not accept that it is a common practice for doctors to use each other's prescription pads unless the name of the other is altered to that of the prescribing doctor."

62. The Tribunal's view of the offences was that they did not warrant the conclusion that it was not in the public interest to allow the respondent to practise. The Tribunal said:

"Although we are of the view that these convictions reflect poorly upon the integrity of McGoldrick and furthermore that they reveal an arrogance on his part as to compliance with the law, we do not conclude that these convictions by themselves are such as to enable us to say that it is not in the public interest to allow McGoldrick to practise by reason of them."

66. The Tribunal found that the inquiry pursuant to s.17 of the Medical Practitioners Act answered the description of the proceedings referred to in s.7(2)(e), and, while it thought that the allegations the subject matter of the inquiry were serious, as they remained unproven the Tribunal did not consider "that on this ground alone it is appropriate to refuse to grant registration."

69. In contending that the character of the respondent was such that it would not be in the public interest to allow him to practise (s.7(2)(a)), the appellant relied upon each of the matters relating to paragraphs (c), (d) and (e) and in addition led evidence before the Tribunal that the respondent in February 1993 and in September and October 1995 had treated patients while unregistered. The evidence was not challenged by the respondent, although he gave evidence seeking to explain his conduct. The Tribunal said that it was satisfied that on at least six occasions while he was unregistered the respondent purported to treat patients as if he had been registered, and

"on a number of occasions, used the prescription pads of other doctors in order to write prescriptions. Accordingly, it follows that we are satisfied that on the occasions to which we have referred McGoldrick has at the minimum been cavalier in respect of his obligations not to breach the Medical Practice Act 1994. The use of a false name in so far as the Montague consultation is concerned and the use of prescription pads belonging to registered medical practitioners (other than McGoldrick) demonstrated a clear lack of honesty on the part of McGoldrick on the occasions in question. Furthermore, we are satisfied that McGoldrick was less than frank in giving his evidence before us about such matters."

73. After referring to the evidence led on behalf of the respondent as to his character, and noting that the respondent had not treated any patient inappropriately or caused any harm to a patient, the Tribunal said that its principal concern as to the respondent's character arose from the fact that he treated patients under the names of other practitioners when he was not permitted by law to practise, and concluded:

"The matters which we find to be adversely relevant to McGoldrick's character are quite significant, particularly as they relate to matters associated with the conduct of medical practice. However, there are some mitigating factors. First of all, each of the incidents which concern us as to the relevant character of McGoldrick occurred some years ago. In so far as the examination of the patients which are related to these issues are concerned, we are concerned that the consultations in question were generally appropriate. In each case McGoldrick has some explanation for the circumstances under which he purported to treat the patients. We accept that there was no direct financial benefit to him in treating such patients although there may well have been an indirect financial benefit to the Supercare Clinic by treating such patients and furthermore by retaining their goodwill. Although the Tribunal has found these issues to be troublesome, we have concluded in the end result that McGoldrick been suspended from practice for a period of over ten years by reason of not being registered during this period. We do not conclude that the defects in character which we have identified as being of concern in relation to permitting McGoldrick to practice as a registered medical practitioner, are so overwhelming that he should in effect be barred from practising in the future."

Accordingly the Tribunal set aside the appellant's decision and determined that the respondent be granted registration subject to conditions.

78. The Medical Practitioners Board of Victoria now appeals, seeking to have the Tribunal's decision to grant registration set aside. The appeal is brought pursuant to s.148 of the Victorian Civil and Administrative Appeals Tribunal Act 1998, which provides that a party to a proceeding before the Tribunal may appeal to the Court of Appeal on a question of law from an order of the Tribunal in a proceeding where the Tribunal was constituted, as this Tribunal was, by the President whether with or without others, if the Court of Appeal gives leave to appeal. Leave to appeal was granted in this case.

81. The appellant contended that the Tribunal erred in failing to cast upon the respondent the onus of proving that there were no grounds under s.7(2) for refusing to grant registration. The Tribunal said:

"We have considered this matter and have concluded that there is an onus on McGoldrick to establish his 'prima facie' entitlement to registration for the purposes of s.7(1) of the Act. We do not consider that the Board carries any onus or burden of proof. However, in our view the Board is required to examine the application for restoration with caution and care. Before refusing registration it should ensure that there is evidence which is sufficient for it to achieve a high level of satisfaction that any grounds under s.7(2) of the Act are properly established, consistent with its obligation to adopt procedural fairness and with the purposes of the Medical Practice Act set out in s.1(a) of the Act."

85. I take the Tribunal to mean that the respondent was required to prove that he was qualified by education and training and had paid the requisite fee, and that there was no onus of proof resting on the Board in respect of any grounds falling under s.7(2). In the present case it was hardly relevant to consider onus of proof. I reject the appellant's submission that in this case the respondent bore an onus to establish that there were no grounds under s.7(2) on the basis of which the appellant might refuse to grant registration. Unless facts are established which constitute a ground or grounds under s.7(2), the Tribunal cannot exercise its power to refuse an application for registration. In the present case, however, the facts were not in dispute. The only questions were whether the Tribunal considered that any of the admitted facts fulfilled the description of one or more of the grounds set out in s.7(2) and, if they did, whether on that account the application for registration should be refused. In forming its opinion as to those matters the Tribunal put aside, in my view correctly, the question of onus of proof. It may be helpful to consider whether an onus has been discharged in deciding where the truth lies; it is not helpful in forming an opinion as to whether established facts warrant the exercise of a power to refuse an application. Cf. McDonald v. Director-General of Social Security [1984] FCA 57; (1984) 1 F.C.R. 354 at 365-6 per Northrop, J.; Minister for Immigration and Ethnic Affairs v. Wu Shan Liang [1996] HCA 6; (1996) 185 C.L.R. 259 at 282 per Brennan, C.J., Toohey, McHugh and Gummow, JJ.

88. The appellant's principal complaint as to the Tribunal's decision was concerned with the manner in which the Tribunal dealt with ground (a) in s.7(2). It was contended on behalf of the appellant that the Tribunal erred when determining that the respondent's character was not such that it would not be in the public interest to allow him to practise as a registered medical practitioner by failing to consider the cumulative effect of the facts advanced in respect of other grounds and the unauthorised treatment of patients in 1993 and 1995 and by failing to take into account the effect of the evidence which the respondent gave before the Tribunal.

91. In dealing with grounds (c), (d) and (e) the Tribunal separately considered the facts advanced by the Board in respect of each ground and determined that although the grounds were established, none of them, considered discretely, warranted the exercise of the power to refuse the application for registration. If the Tribunal had gone no further, the appellant's complaint that the Tribunal erred in failing to consider the cumulative effect of all the facts would have had some substance. However, in dealing with ground (a) the Tribunal acknowledged that the appellant relied on the facts constituting grounds (c), (d) and (e). In my view the Tribunal was entitled to consider the combined effect of all the grounds under the rubric of ground (a). The Tribunal appears to have regarded the unauthorised treatment of patients in 1993 and 1995 as the most significant factor, but I do not think it should be concluded that the Tribunal was unconscious of the other factors and failed to have regard to their combined effect.

94. In my opinion the Tribunal's findings as to the evidence given by the respondent before the Tribunal were relevant to the question whether the respondent's character was such that it would not be in the public interest to allow him to practice medicine. At many points the Tribunal rejected the respondent's sworn testimony. Apart from the observations as to his evidence quoted in paragraphs 9 and 12 above, the Tribunal said:

"... [W]e found McGoldrick's explanation of his failure to keep his registration ... as less than compelling ..."

"... [W]e have serious concerns about the frankness of McGoldrick in some respects ..."

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

102. Yet it appears that the Tribunal failed to consider the implications of the respondent's false testimony in assessing his character. The Tribunal did say that the appellant "relies upon the lack of frankness of McGoldick to demonstrate that his character is such that it is not in the public interest to allow him to practise as a registered medical practitioner." The Tribunal noted that in response the respondent's counsel "has submitted that the only significant attacks upon McGoldrick's character relate to his lack of honesty in relation to the consultations had by him with members of the public during the time that he was unregistered." The Tribunal proceeded to recount the evidence led on behalf of the respondent as to the consultations and as to his character. The Tribunal described the matters adversely relevant to the respondent's character as "matters associated with the conduct of medical practice" and said "each of the incidents which concern us as to the relevant character of McGoldrick occurred some years ago." Although counsel for the respondent contended that the Tribunal did have regard to the false testimony in assessing the respondent's character, I think the plain meaning of the words used by the Tribunal was that the false evidence given by the respondent did not concern the Tribunal. Clearly it did not occur some years ago. The Tribunal appears to have accepted the submission of the respondent's counsel that the only significant attacks upon the respondent's character related to his treatment of patients while unregistered; that did not include his false testimony.

105. Counsel for the respondent urged us to adopt a beneficial construction of the Tribunal's reasons and not to construe them "minutely and with an eye keenly attuned to the perception of error" Collector of Customs v. Pozzolanic (1993) 43 F.C.R. 280 at 287 per Neaves, French and Cooper, JJ.; Minister for Immigration and Ethnic Affairs v. Wu Shan Liang, above, at 272 per Brennan, C.J., Toohey, McHugh and Gummow, JJ. This approach to the judicial review of administrative decisions made by lay officials may not be entirely appropriate to an appeal from a tribunal the majority of the members of which were judges. However that may be, in my opinion the words used by the Tribunal are clear. The respondent's character was assessed by the Tribunal without regard to the falsity of the evidence which he gave to it.

108. The Tribunal was influenced not only by the consideration that each of the incidents that concerned it occurred some years ago, but also by the fact that the respondent "has in effect been suspended from practice for a period of over ten years by reason of not being registered during this period." This approach apparently reflects a view that the refusal of the respondent's application would be punitive.

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

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

See also New South Wales Bar Association v. Evatt [1968] HCA 20; (1968) 117 C.L.R. 177 at 183-4. In my view a like jurisdiction was being exercised in the present case. The question was not whether the respondent had been sufficiently punished, but whether at the time the Tribunal was conducting its review the respondent's character was such that the public needed to be protected from him. The length of time spent out of practice by the respondent could not determine the proceeding if he was still not fit to practise. In this context it was significant that the respondent had recently given false evidence in an effort to deny or minimize his earlier conduct. His testimony showed that there was no reason to suppose that he had become a changed man since the last of the incidents of unauthorized treatment in October 1995. His approach to the application precluded an acknowledgment of guilt or expression of contrition.

116. For the foregoing reasons I am of the opinion that the Tribunal erred in law in failing to have regard to a consideration which was relevant to its decision. I would allow the appeal, set aside the order of the Tribunal and remit the proceeding to be decided again, without the hearing of further evidence, by the Tribunal in accordance with these reasons.