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[2000] VCAT 456
Victorian Civil and Administrative Tribunal
2000-01-29
Kellam J
Original judgment source is linked above.
The applicant met B1 on 22 December 1997 (the day after delivery to him of the first letter from the Board) at which meeting he gave her "a reasonably costly" present. In response to the query as to why he had given B1 the present he said "Well, because she liked giving me presents, and so I liked to give her back a present."
The applicant denied that the purpose of the meeting and the present was to ensure that B1 made no complaint about him. He said "It never entered my mind to stop her making a complaint."
On 8 January 1998 the Applicant rang B1 and arranged a meeting with her. Mr Stanley suggested this meeting was arranged to ensure that B1 made no complaint about their relationship. The Applicant rejected this suggestion and said that it was merely a social meeting. He said "We used to have cups of coffee every now and again, maybe not every two weeks, but every two or three weeks."
We consider, in the light of the allegations which had been made by other patients at that time, that it is improbable that it never entered the mind of the Applicant to deter B1 from making a complaint and that the great likelihood is that he did desire as suggested by Mr Stanley to ensure that B1 did not aggravate his circumstances by making a complaint.
There is little doubt that the sexual arrangements made with the patients the subject of this enquiry, were premeditated, carefully planned, opportunistic, deceptive and to some extent followed a pattern. Both Dr Orchard and Dr Grounds gave evidence that at all times the Applicant knew that what he was doing was wrong. Their explanation was that he was "driven" to such conduct by his bipolar disorder.
If that explanation is not the true explanation, the other explanation is that the Applicant has a personality defect that leads him to be deceptive and sexually opportunistic regardless of whether it is right or wrong. We are unable to conclude on the material before us which alternative is correct in this case. We do not, however, need to make any definitive determination as to whether or not the Applicant suffers from bipolar disorder and if so the extent of such disorder. We have concluded from the evidence, particularly that of Dr Gounds, Dr Orchard and the Applicant, that the Applicant is presently not a fit and proper person to be practising as a registered medical practitioner. In such circumstances the only appropriate order is that the registration of the Applicant should be cancelled.
We have also concluded that it is not possible for us, at this time, to say whether the Applicant will be a fit and proper person to resume medical practice at any specific date in the future.
Any decision as to whether or not the Applicant should be restored to the register will be a matter for the Board to consider in the event that an application is made to it at a future date. The Board will need to be satisfied that the Applicant meets the legislative requirements for registration which exist at that time. The Board will need to assess the Applicant's eligibility at that time having regard to, among other matters, those referred to in section 7(2) of the Medical Practice Act, assuming such provisions are applicable at that time.
Consistent with the views expressed in Kirumba (p.13), it will be a matter for the Board, as part of the assessment process at that time, to have regard to the Applicant's mental health and as applicable its stabilisation under appropriate treatment. The decision to be made by the Board as to the restoration to the register of Mr Sherman must depend on the evidence presented at that time.
Accordingly we conclude that the decision of the Board to cancel the registration of the Applicant should be affirmed.
Richard Peter Sherman
Medical Practitioners Board of Victoria [2000] VCAT 456
"There is no doubt that the complainant before the Tribunal bore the onus of establishing that the appellant's conduct proved amounted to "professional misconduct". But, with the aid of admissions and the evidence of patients which was not challenged, the proof of facts warranting that conclusion, on a provisional basis at least, was overwhelming. It then became necessary, if the result of removal were not automatically to follow, for the appellant to displace the inferences, which would ordinarily arise, that his apparent misconduct, as proved, was conscious, deliberate and wrongful. The appellant tried to do this by establishing an alternative explanation for the conduct proved. The onus remained upon the complainant throughout the proceedings to establish "professional misconduct". Having regard to the serious consequences which would flow from that result, the complainant was required to prove the case to a very high level of satisfaction. Briginshaw v Briginshaw and Anor [1938] HCA 34; (1938) 60 CLR 336, 361. But it was not the obligation of the complainant to disprove the existence of a bipolar condition alleged by the appellant. Nor was it the obligation of the complainant to prove the precise extent of that condition or its effect on the appellant's behaviour.
These principles are clear, also, from a series of earlier decisions including New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, particularly the passage at pages 183-4, concerning the protective nature of the Court's powers to discipline a barrister, there being no element of punishment involved.
(1938) 60 CLR 336
(1968) 117 CLR 177