RICHTER v WALTON

Court of Appeal (NSW)|1993-06-15|Before: Kirby P, Priestley JA

KIRBY P, PRIESTLEY JA and O'KEEFE AJA 15 June 1993, 15 July 1993 [1993] NSWCA 233

MEDICAL PRACTITIONERS - professional misconduct - discipline - insertion of finger into patient's vagina - admission of wrong and remorse - evidence that conduct was an aberration - protection of public

MEDICAL PRACTITIONERS - professional misconduct - removal of name from register - specialist rheumatologist inserts finger into patient's vagina, caresses breasts and acts improperly - practitioner acknowledges misconduct and expresses remorse - Medical Tribunal orders removal of name from medical register - appeal to Court of Appeal against order

held: (by maj): Reprimand and 2 years supervised practice substituted for removal from the register. Kleiner v Secretary, Department of Health, unreported, CA, 20.10.1987 appld.

held: (1) (by the Court): In order to authorise the Court of Appeal to disturb an order of the Tribunal, it was necessary for the practitioner to show error in the Tribunal's decision. Huang v Walton, Court of Appeal, unreported, 20 April 1993 [1993] NSWJB 34 applied; (2) (by Kirby P and O'Keefe AJA; Priestley JA dissenting): The Tribunal erred in the use made by it of evidence concerning the risk of re offence and in the apparent inconsistency of its reasoning; (3) Such error required reconsideration of the evidence and of further evidence placed before the Court of Appeal in the light (inter alia) of the public welfare; (4) The purpose of the exercise of the jurisdiction by the Tribunal and by the Court was protection of the public, not, as such, the punishment of the practitioner. Clyne v New South Wales Bar

Association (1960) 104 CLR 186; New South Wales Bar Association v Evatt (1968) 117 CLR 177 applied; (5) Having regard to the evidence and the purpose of the jurisdiction, the appropriate order was reprimand and supervised practice for two years under conditions limiting the treatment of female patients without chaperone. Kleiner v The Secretary, Department of Health, Court of Appeal, unreported, 20 October 1987 applied; (6) Such orders substituted by the Court of Appeal.

Kirby P and O'Keefe AJA This is an appeal by a medical practitioner (the Appellant) pursuant to s32U of the Medical Practitioners Act, 1938 against an order by the Disciplinary Tribunal under s32R of that Act that the name of the Appellant be removed from the Register of Medical Practitioners and fixing a

period of twelve months from 5 May, 1993 as the time after which the Appellant might apply to have his name restored to the Register.

The Tribunal found, and indeed it was not in dispute, that on 28 May, 1992 in the course of examining a female patient the Appellant interfered with her by inserting one of his fingers into her vagina, caressing her on and otherwise interfering with her breasts and engaging in associated improper actions. The Complainant indicated that the whole of the assault occupied a short time, something more than a minute but probably not more than a few minutes at most. There was no suggestion of force, violence or any rough handling of or language to the

patient. Naturally the Complainant was distressed and her evidence was that the event had a considerable psychological effect upon her and caused her not to trust men, particularly doctors. This was accepted by the Tribunal.

The Appellant freely confessed his wrongdoing. At no time did he make any attempt to conceal or excuse what he had done, nor could he. What he had done was clearly in breach and in serious breach of the ethics of the medical profession and of the standards rightly expected of the members that profession. All patients are entitled to approach their medical practitioners secure in the belief that their ills will be treated to the best of the skill and ability of their medical practitioners and without any interference of an improper kind with their persons or in relation to their affairs. Respecting the vulnerability of those who attend upon them when in need is fundamental to the practice of medicine. In admitting that what he had done was a serious breach of the standards expected of a medical practitioner and constituted unethical and improper conduct in relation to its practise the Appellant recognised this and the high standards expected by the public of the members of the medical profession.

S32U of the Medical Practitioners Act provides that:

"(1) A person about whom a complaint is referred to the Tribunal under s31, s32 or s32H, 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 under s32R by the Tribunal, within the prescribed time.

(3) In determining an appeal under this section, the Supreme Court may: (a) dismiss the appeal; or (b) make such orders 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 s32R"

In order for the Appellant to succeed in this Appeal he must first show that there has been error on the part of the Tribunal.

There is an internal tension in the Tribunal's decision. On the one hand it found that the event, the subject of the complaint "do not indicate any premeditation... rather that the improper acts occurred on the spur of the moment", that they were "an isolated one off aberration" which was "an isolated incident not typical of (the Appellant's) normal behaviour" and that there was nothing to support any suggestion of inappropriate behaviour at any other time. The Tribunal concluded that anxiety and depression had given rise to the

uncharacteristic and unacceptable behaviour of the Appellant and that such anxiety and depression had diminished significantly as a result of treatment which he had undergone since the events complained of. On the other hand the Tribunal found that there was a "small" but "nonetheless...real risk" of such behaviour recurring.

The medical evidence on which this finding was based indicates that the risk of the Appellant reoffending was "very remote" and "exceptionally remote" (Dr McMurdo), that for him to do so again would be "extremely unlikely" (Dr McClean). However in reaching its conclusion the Tribunal gave a great deal of weight to particular answers by Dr McClean indicating that when considering the possibility of a repetition of such behaviour "no one could be absolutely certain', that he "couldn't give any guarantee" and to his expression of opinion that if the underlying factors of anxiety were depression were not changed "there could be a risk" that such behaviour could recur. However later on in his evidence Dr McClean described this risk as "minimal".

In reaching its conclusion that the name of the Appellant should be removed from the Register the Tribunal considered the prospects of the Appellant reoffending. It found the risk to be "small" but nonetheless "real". In this finding it appears to us that the Tribunal translated the remote possibility and the minimal risk

referred to in the evidence into something which was significant. There, in our opinion, lies the error. Read as a whole, the evidence indicates that whilst no doctor (or indeed anyone) can ever guarantee that any individual, including the Appellant, may not at some time in his or her life do something which is uncharacteristic and aberrant, for the Appellant the prospects of that occurring were "exceptionally remote", "minimal", "extremely unlikely" ie, not significant. This estimate, advanced in the only evidence on the point before the Tribunal is supported by the antecedent behaviour of the Appellant as well as by the finding of the Tribunal that this was a "one off uncharacteristic" incident.

The Tribunal did not have to accept the particular evidence of any of the witnesses. But, if it differed from the fair meaning of the unanimous evidence placed before it, and if as here that evidence was in any case supported by the probabilities emerging from the Appellant's life and past and subsequent conduct, the Tribunal could be expected to indicate its rejection of the evidence and to explain why it had done so. The Tribunal did not do this. It seems to have considered that it was simply applying the evidence. But in our view it was not.

Since we have concluded that the Tribunal fell into error it is necessary for us to consider the order which it is appropriate to make in the present case.

The Appellant is a very highly qualified, skilled and caring practitioner. He graduated in 1973 and has practised as a specialist physician since 1980. He is a fellow of the Royal Australian College of Physicians, and a Doctor of Philosophy. He was Registrar at Middlesex Hospital in London and Senior Registrar from Guys Hospital in London. He is a person who has conducted both clinical and scientific tests and spent a considerable part of his adult life in studying some of the more difficult aspects of rheumatology. In the course of his practice he has aimed at providing and has in fact provided a very high level of service for his patients, the object of which has been not to keep any patient waiting for an appointment longer than two weeks. This resulted in a very heavy

work load, the pressure of which on the medical evidence and the Tribunal's finding, contributed to the unacceptable behaviour complained of.

The purpose of an order under s32R of the Act is to protect the public, not to punish the practitioner. The disciplinary power is, as the High Court said in New South Wales Bar Association v Evatt ((1968) 117 CLR

177 at 183),"entirely protective". In no sense is the order to be regarded as punitive or imposed to conform to notions of due punishment for the conduct which is found. Removing the name of a medical practitioner from the Medical Register is the ultimate professional sanction, in the same way as is the disbarring of a barrister. Again as the High Court has said "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" (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201 to 202).

Necessarily, the exercise of a disciplinary power in respect of a professional person may have a consequence that seems punitive and that has results for the person that are burdensome and hard. But that is not their purpose in the eye the law. In a case such as the present, punishment can be left to the application (if any) of the criminal law, to the consequences for the practitioner's practice, to any civil action that may be taken and to the shame of the publicity that has attended these proceedings. Punishment is not the purpose of the proceedings. That purpose remains, from first to last,........ the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, including those who deal with this practitioner.

In considering the appropriate order to be made it is right that we take into account the serious nature of the breach of ethical and professional standards proved against the Appellant and the affront to the privacy and dignity of the patient which the Appellant admits. However it is also necessary to give weight to the following considerations:

1 that the unacceptable behaviour of the Appellant was uncharacteristic;

2 that such behaviour was engaged in on the spur of the moment;

3 that the likelihood of any recurrence is exceptionally remote;

4 the response of the Appellant to his wrongdoing, ie freely confessing, exhibiting genuine remorse and amendment for his wrongdoing and recognising its seriousness; and

5 the previously untarnished professional and personal record of the Appellant over almost ten years in practice.

Should the services of such a highly qualified and caring medical practitioner be lost to the public (whose welfare

we must by s32U(3) of the Act take into account) because of this event of a few moments? In the circumstances of the present case we think not.

On balance we do not consider that the protection of the public and the expression of the community's proper disapprobation of the behaviour in question requires the removal of the name of the Appellant from the Register. This view is fortified by additional evidence which was admitted by the Court as relevant to the issue of the order which should be made in the event that the Court came to consider the question of the appropriate order to make. This evidence was given by Professor Gordon Parker, Professor of Psychiatry at the University

of New South Wales and Dr JM McClean who clarified and expanded on the evidence he had given before the Tribunal.

In his report Professor Parker, who was treating the Appellant, said of him:

"He has clearly been publicly and professionally humiliated, a punishment" which has had immediate consequences and which will have ongoing negative effects. He has been required to leave the hospital with which he has been affiliated for a period of time. For a person who has been regarded by his

professional colleagues and by others who have known him for an extended period as a caring kindly and compassionate man this is a severe consequence which, in my mind, is almost certainly sufficient in and of itself to prevent such behaviour recurring."

In his oral evidence Professor Parker also addressed the question of whether or not there was a likelihood of repetition of behaviour of the kind in question. He said

"My judgment of Dr Richter's personality style and in terms of my experience with other people who stepped out of line, then I judge the probability as extraordinarily low. I think the humiliation, the various consequences that have followed are of the type that people with his personality style just find so unbearable that the chance of repeating the behaviour is almost impossible.,..."

We accept the evidence of Professor Parker. This evidence provides even stronger support than did the evidence before the Tribunal for the conclusion that behaviour of the kind which brought the Appellant before the Tribunal would not recur. Professor Parker was strongly of the opinion that the Appellant's chance of repeating the unacceptable behaviour was "extremely unlikely" and in his oral evidence he judged "the probability as extraordinarily low".

Dr McClean supplemented the evidence which he gave before the Tribunal by a report which explained something in his evidence below which seems to have been misunderstood by the Tribunal. He also stressed the Appellant's proper response to what he had done and the fact that he had become "painfully and humiliatingly aware of what he has done". Dr McClean thought that a lack of insight, which in his view had been a factor in giving rise to the improper behaviour of the Appellant, had been overcome. His view was that:

"The shock he has received has made it impossible for him to return to that state of blindness."

Dr McClean also expressed the opinion, that he could not realistically see the Appellant losing that insight which he had gained. Importantly, since it was on some of his answers that the Tribunal relied in reaching its conclusion, he expressed his opinion that "the current likelihood of the (Appellant) re offending is virtually nil" We accept that opinion and regard it as correct. We also regard as relevant the high opinions expressed of the Appellant by professional colleagues who were aware of his misconduct, considered it an "astounding aberration" and maintained their trust in him and respect for him.

The case is similar in many respects to Kleiner v The Secretary Department of Health (C of A unreported 20 October, 1987). In that case this Court substituted a reprimand and conditions of practice in lieu of removal from the Register imposed by the Disciplinary Tribunal for uncharacteristic behaviour of a kind not unlike that in the present case. However the conduct in question in that case had what, on one view, was an even more serious element in it. It involved a female child of four years of age. As in the present case the breach was an isolated

instance, with virtually no likelihood of repetition. There had been a conviction of the Appellant and a fine imposed on him in respect of an offence of indecency towards the child involved, and at the time of the hearing of the appeal the doctor was still on a good behaviour bond.

Street CJ in delivering the judgment of the Court, with which Hope JA and Priestley JA agreed, said:

"T have formed the view that the merits are so strongly favourable to the confidence that can be entertained regarding the Appellant's rehabilitation that the extreme penalty of removal of his name from the Register is not called for."

The Chief Justice thought that in that case "the risk of repetition was minimal and to the extent that it could be perceived it could be adequately covered by conditions."

In our opinion the same is true in the present case.

Sufficient time has elapsed since the incident, as it had in Kleiner, for the Court to share the confidence for the future of the medical practitioners who gave evidence before the Tribunal and before the Court. The opinions expressed in that original evidence as explained and expanded upon by the additional evidence of which the Court had the benefit are no less favourable than those before the Court in Kleiner. In the circumstances it is, in our opinion, appropriate to adopt a course of the kind taken by the Court in Kleiner.

Since shortly after the Appellant committed the acts which brought him before the Tribunal he has lightened his work load and changed the circumstances in which he examines female patients. Those changes are reflected in the conditions which were imposed by the Tribunal and by this Court as conditions of stays granted in respect of the Tribunal's orders of 5 May, 1987. In our opinion these conditions should form part of any order which we make, as should a further disciplinary sanction in the form of a reprimand.

The Appeal be allowed and the order of the Tribunal of 5 May, 1993 be set aside.

The Appellant's name be restored to the Register.

The Appellant be reprimanded for his conduct on 28 May, 1992.

For a period of two years from these orders or until the Medical Board otherwise earlier determines, the Appellant comply with the following conditions of practice:

(a) Except in the case of an emergency when the Appellant has no other reasonable choice, the Appellant shall, in the course of his practice, whether in a hospital or otherwise, not see or treat any female patient except in the continuous presence of a female chaperone;

(b) The Appellant shall, at no cost to the Medical Board, at least once in every period of three months or such other period as the Board may specify, undergo psychiatric consultation and, if required, treatment by a psychiatrist nominated by the Medical Board.

(c) The Appellant shall consent to the psychiatrist referred to in condition (b) above furnishing to the Medical Board (if it so requires) a report of his/her consultation and/or treatment of the Appellant.

The Appellant should pay the costs before the Tribunal. No order as to the costs of the appeal.

Priestley JA Dr Richter by his notice of appeal in these proceedings appeals from the decision and order of the Medical Tribunal of 5 May 1993 that his name be removed from the Register of Medical Practitioners and that the appellant may not apply for re registration within one year of that date.

The Medical Tribunal was constituted by his Honour Judge Cooper, Dr Grygeil, Dr Pasfield and Ms Petre.

The Tribunal's reasons for its decision and order are clear and detailed. I will not attempt to reproduce them, but will only mention those aspects of them necessary to explain my conclusion as to the proper result of the appeal, leaving any further detail to be obtained by reference to the entirety of the Tribunal's reasons.

The Tribunal had before it a complaint alleging misconduct by the appellant on two separate occasions.

The primary evidence of what was alleged against the appellant on both occasions came from a female patient who made a statutory declaration in which she narrated in matter of fact detail what she said happened on each occasion. The statutory declaration was in evidence before the Tribunal. In

Dr Richter gave evidence before the Tribunal. He did not disagree with the account of events given by the patient but put forward a medical justification for what he did on the first occasion. Another medical practitioner gave some support to the claim that the admitted conduct was medically justified and the Tribunal held that it was not satisfied on the balance of probabilities that the complaint concerning the first occasion was made out.

The second occasion of complaint was 28 May 1992. The appellant and the patient were alone in the room in the appellant's surgery in which he examined patients. He was treating her for back pain and for the purpose of physical examination she undressed to bra and panties. The appellant gave the patient an injection in the lower back while she was lying on the table in his room. After his treatment and examination were finished he caused her to lie on her back on the table and then without her consent handled and kissed her right breast and nipple, began playing (the patient's words) with her clitoris, inserted one finger in her vagina, then a second finger. Again using the patient's words, he continued playing with her clitoris, began to move his fingers in and out of her vagina and pulsated his fingers there.

From the full description of these events in para8 to paral inclusive of the patient's statutory declaration, it is not possible to form a clear estimate of the time taken by the events, but they must have gone on for at least several minutes.

The patient was menstruating at the time and was using Meds. The appellant's penetration of the patient with his fingers forced the Meds further into her vagina. In her statutory declaration she said that when he first inserted one finger into her vagina she could not believe what was taking

place. As the events went on she said she was terrified and had her eyes shut. She remembered some conversation she had with him during and immediately after the episode but said by the end of it she was so upset and afraid that she could not remember exactly what he said.

Events then returned to being ordinary medical ones. The appellant gave her some prescriptions, some advice and an account. She left his rooms and going downstairs in the lift started crying. She continued to feel upset about what had happened and eventually saw a solicitor and went to the Complaints Unit of the Health Department.

In her evidence before the Tribunal the patient said that about a week after 28 May 1992 she sought professional assistance from a psychologist whom she continued to see at first weekly and at the time of giving evidence before the Tribunal approximately monthly. She said the incident had "a lot" of "effects" upon her: Asked to say in her own words what she meant by that, she said:

"Very hurt, a trust that just completely disappeared from - sorry - I have no trust in men, especially in doctors. I am just hurt and very upset. I just - I put my whole trust in this person for him to help me deal with my pain, hopefully to fix it and it was destroyed."

At the time of the Tribunal hearing the patient was nearly twenty five.

The appellant made a statutory declaration in which he set out his recollection of the two occasions of the patient's complaint. This declaration was in evidence before the Tribunal. In paral0 and paral! the appellant was speaking of what happened on 28 May 1992. He referred first to the injection he administered to the patient and said that while waiting for the anaesthetic to take effect he asked her if he could perform a vaginal examination to establish whether she had injured the ligament in her pelvis and she consented to that. He continued:

"T am ashamed to relate that at that time, the events referred to by" [the patient] "in para9, paralO and paral! of her statutory declaration took place."

The matters I have so far summarised comprised the case in support of the complaint made against the appellant. He did not contest that the complaint was established in regard to the occasion of 28 May 1992.

The rest of the hearing before the Tribunal and almost the entirety of the appeal in this court was taken up with the related questions of why it was the appellant did what he did, what were the prospects he might do something similar again and what was the appropriate order to be made in regard to him in exercise of the powers under s32R(1) of the Medical Practitioners Act. That is, the focus of attention in the proceedings switched from the facts of the misconduct and its effects upon the patient to a very detailed concentration upon the appellant and his mental health, what it was that caused his misconduct, and the consequences of his misconduct for himself and his future. In his case reports made by two psychiatrists were tendered and they each gave evidence. Much of their evidence was directed to the question whether the appellant might misconduct himself again in the same or a similar way.

The Tribunal considered this material in detail and said that in reaching its decision about the appropriate order to make it was particularly bearing in mind the following:

"1: The conduct of the respondent on" [the patient] "was reprehensible and a breach of the trust which the patient reposed in him and has caused her long lasting psychological effects.

2: It was, however, a one off aberration in an otherwise excellent history of practice.

3: It was caused by psychological stresses of which the respondent was, at the time, unaware. This does not mitigate the gravity of his conduct. It does however explain it.

4: The respondent has been, and still is, conscious of the enormity of his conduct and genuinely remorseful. He has demonstrated his remorse not only by words, but more importantly, by his actions. Those actions include obtaining appropriate treatment, reducing his hours of work, and instituting a system of not seeing female patients unless accompanied by a female chaperone. In addition, he has provided appropriate examination gowns.

5: Whilst the risk of the respondent re-offending is small, it is still nonetheless a real risk."

"The Tribunal has given careful consideration to the question of permitting the respondent to continue in practice subject to conditions, including the presence of a chaperone during consultations with female patients. There is however a real practical difficulty in enforcing such conditions. To a great extent compliance with such conditions depends upon the continued co-operation and reliability of the respondent.

The evidence of Dr McClean indicates to this Tribunal that psychological stresses in the future may bring about a situation in which the respondent could succumb to temptation. Such succumbing could lead to his breaching the conditions in circumstances where there would be no third party present to enforce them.

In the light of these findings, this Tribunal is of the opinion that the appropriate order to make in order to protect the public, and to maintain the standards of the medical profession, is that the name of Dr Richter be removed from the register.

At the same time this Tribunal considers that it would not be desirable to leave the respondent without any hope of ever practising his profession again. The function of this Tribunal is not to punish but to uphold the standards of the profession and to protect the community. The protection of the community is best met by the existence of high standards and the adherence by the profession to those standards. It is essential that the public can repose absolute trust in the members of the profession. This Tribunal is satisfied that both these functions will be fulfilled by fixing a period of twelve months from this date as being the period after which the respondent may apply to be registered.

In fairness to the respondent, it must be said that it is not automatic that he would be accepted for registration at the expiration of 12 months. In any future application for registration it will be incumbent upon the respondent to satisfy the Tribunal both of his redemption and that he has in the interval, kept himself abreast of current medical knowledge."

The nature of the appeal which the appellant has brought to this court pursuant to s32U(1)(b) against the orders made by the Tribunal under s32R was mentioned by Samuels JA in Childs v Walton, an unreported decision of this court given on 13 November 1990. He said:

"that the making of an order under s32R is an exercise of discretion with which this court should not interfere save upon the well understood grounds which authorise intervention in such cases." (at 14)

The nature of the appeal was mentioned again in Huang v Walton, another unreported decision of this court, delivered on 20 April 1993. In that case Kirby P said that it is not open to this court in such an appeal simply to substitute its decision for that of the Tribunal but "... it is necessary... to show error on the part of the Tribunal appealed from.... cases" [where the court can intervene] "will be akin to those where an error in the exercise of the discretionary or quasi discretionary power can be demonstrated." (at 4)

Again, in Bannister v Walton, an unreported decision of this court delivered on 4 June 1993, I touched upon the same matter more shortly, saying that:

"This court's task" [in such an appeal] "is... to consider the appeal against the orders made to see whether, in regard to the complaints found proved, the Tribunal acted on some wrong basis such that the orders should be set aside or varied." (at 2)

In the present case it was submitted for the appellant that two errors could be seen in the Tribunal's reasoning to its decision. It was said first that the finding by the Tribunal that the appellant's conduct was a one-off

aberration in an otherwise excellent history of practice was quite inconsistent with the further finding of the Tribunal that the risk of the appellant re offending was small but nonetheless a real risk. Second, it was said that this latter finding showed a misunderstanding by the Tribunal of the expert psychiatric evidence before it or alternatively that it was simply not open to the Tribunal to make that finding on the evidence before it.

The first of them seems to me to depend on reading into the Tribunal's finding that the misconduct of the appellant was a one off aberration an implication that because it was a one off aberration it would not happen again, that is, that the finding amounted to saying that it was a once only aberration. It seems to me on considering the whole of the reasoning preceding the references to the conduct being a one off aberration, a comment that was made more than once in the course of the Tribunal's reasons, that what the Tribunal was doing was summarising the history of the appellant prior to the occasion of misconduct, noting in his favour that there was nothing to indicate that anything similar had ever happened before, noting also that his history of practice was excellent until that time, but was dealing with matters to that time, and not making any finding about the likelihood of such conduct happening again. On that understanding of the finding made, I see no conflict between it and the later finding with which it is said to be inconsistent.

The substance of the second submission rests upon the fact that generally speaking the opinions expressed in the course of the psychiatric evidence before the Tribunal were to the effect that the risk of the appellant re offending was exceedingly unlikely, exceptionally remote or minimal. That opinion evidence was not fully adopted by the Tribunal which came to the conclusion that the chance of the appellant re-offending was small but

nonetheless real. The Tribunal, however, to my mind, adequately explained the reason for the opinion it reached. It set out passages from Dr McClean's evidence in which he described what in his opinion were the primary reasons for the appellant having reached a condition of mind in which he committed the misconduct of 28 May 1992. From those primary reasons for the misconduct the Tribunal drew a conclusion different in some degree from the opinion expressed by Dr McClean. That does not mean, in my opinion, that the Tribunal was in error. Samuels JA in delivering what was (effectively) the judgment of the court in Buttsworth v Walton (Court of Appeal, unreported, 19 December 1991) said that the Tribunal, being an expert body, is not bound to accept the evidence of experts given before it, even where there is no expert evidence to the contrary (at 14).

What happened in the present case is an example of that position. The Tribunal accepted, as in my opinion it was entitled to do, the opinions expressed by Dr McClean about the underlying causes of the appellant's behaviour, and then, as it was equally entitled to do, drew from those premises somewhat different conclusions from those which Dr McClean expressed as being his opinion about future possibilities. I do not see any error in this.

Since I do not agree that the Tribunal made errors as submitted by counsel for the appellant, there is no basis for this court to vary the orders made by the Tribunal, so long as those orders are not so inappropriate to the circumstances of the misconduct as to indicate in themselves that some error must have been made.

I do not see any such inappropriateness between the misconduct and the orders made.

The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor.

Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards; all this being very much in the public interest. When the maintenance of those standards and the protection of the public interest are considered in relation to what happened in the present case, I do not think that it can be said that the orders made by the Tribunal were inappropriate.

In my opinion, the appeal should be dismissed with costs.

Appeal allowed. Order of the Medical Tribunal of 5 May 1993 set aside; The appellant's name to be restored to the Register;

The appellant to be reprimanded for his conduct on 28 May 1992; For a period of two years from these orders or until the Medical Board otherwise earlier determines, the appellant comply with the following conditions of practice:

(a) except in the case of an emergency when the appellant has no other reasonable choice, the appellant shall, in the course of his practice, whether in a hospital or otherwise, not see or treat any female patient except in the continuous presence of a female chaperone;

(b) the appellant shall, at no cost to the Medical Board, at least once in very period of three months or such other period as the Board may specify, undergo psychiatric consultation and, if required, treatment by a psychiatrist nominated by the Medical Board; and

(c) The appellant shall consent to the psychiatrist referred to in condition (b) above furnishing to the Medical Board (if it so requires) a report of his/her consultation and/or treatment of the appellant.

The appellant to pay the costs before the Tribunal. No order as to the costs of the appeal.

Counsel for the appellant: J Barker QC Solicitors for the appellant: Edson Pike Counsel for the respondent: MG Sexton / R Weaver

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