G v Medical Board of the Australian Capital Territory [1994] ACTSC 42 (13 May 1994)

SUPREME COURT OF THE ACT

G v. MEDICAL BOARD OF THE AUSTRALIAN CAPITAL TERRITORY
No. SC152 of 1994
Number of pages - 10
Medical Disciplinary Proceedings

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Medical Disciplinary Proceedings - Medical Board of the ACT - delay in commencing - application for permanent stay - relevant factors - length of and reasons for delay - proven and likely prejudice - public interest - prejudice outweighed.

Medical Practitioners Act 1930 (ACT)

Walton v Gardiner (1993) 177 CLR 278

Herron v McGregor and Ors (1986) 6 NSWLR 246

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Harriman v R [1989] HCA 50; (1989) 167 CLR 590

HEARING

CANBERRA, 18 April 1994
13:5:1994

Counsel for the Applicant: Mr Horler QC

Instructing solicitors: Blake Dawson Waldron

Counsel for the Respondent: Mr C Erskine

Instructing solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
The application be refused.

DECISION

HIGGINS J By Notice of Motion dated 10 March 1994, the applicant seeks an order that certain proceedings pending against the applicant be permanently stayed. Those proceedings involve allegations of unsatisfactory professional conduct against the applicant. The Medical Board of the Australian Capital Territory (the Board) intends to enquire into those allegations pursuant to the provisions of the Medical Practitioners Act 1930 (ACT).

"Patient accuses doctor of sexual assault"
2. On 9 February 1994 an article appeared in The Canberra Times, under the by-line of Ms Marion Frith. Under the above headline appeared the story of a Canberra woman who complained that 20 years previously, she had consulted a general practitioner who had apparently attempted to masturbate her instead of conducting an appropriate examination. She communicated her complaint of this occurrence to her parents. Police were contacted but, due to a perceived lack of corroborative evidence, declined to lay charges. She stated that she had decided to speak out now because she had heard of other cases of similar conduct involving the same doctor and felt, therefore, that "... it had gone too far for too long".

3. Following that publication a number of women made complaints concerning similar alleged misconduct on the part of the applicant.

4. By 1 March 1994, ten complaints had been received including the woman referred to in the newspaper. The dates of the alleged acts of misconduct ranged between 1961 and 1974.

5. In the article in question, the applicant was not named. He was referred to no more particularly than as a "Northside" general practitioner, in practice "more than 20 years ago". He was said to be "still registered, but no longer (working) as a general practitioner".

6. On 22 February 1994, after some, but not all, of the ten complaints referred to above had been received by the Medical Board, there was a further report in The Canberra Times.

"Temporary suspension over sex charges"
7. In this article Ms Frith reported that the Medical Board regarded the allegations seriously and had taken "urgent action". It had received phone calls indicating possible further allegations. It had suspended the registration of the doctor in question.

8. The article identified the doctor concerned only by reference to him having been in practice at a "Northside suburban surgery" between "the early 60s to the mid-1970s".

"Doctor fails to halt suspension"
9. On 23 February 1994, an unattributed article in The Canberra Times reported that the doctor in question had appeared before the Board but the Board had maintained its suspension order. It stated that the doctor had sought a review of that decision by the Administrative Appeals Tribunal.

10. The article contained no further matter which might have pointed to the identity of the doctor.

"Tribunal stays doctor's suspension"
11. In this article, published in The Canberra Times on 24 February 1994, Mr Rod Campbell reported that the ACT Administrative Appeals Tribunal had temporarily lifted the Board's suspension order.

12. The applicant's solicitor was reported to have told the Tribunal that the doctor "had retired from mainstream general practice and now had a very limited and specialised one".

13. The suspension was lifted subject to a condition that another woman be present at all times if a female patient was involved in any consultation with the applicant.

14. The nature of the allegations, attributed to a solicitor for the Medical Board, was described as follows,
"... the essence of the allegations, which spanned a 14 year period

between about 1960 and 1974, was that the doctor, under the guise of
a medical procedure or examination, had indecently assaulted his
female patients. In one case, there was a suggestion that he had
later telephoned one of the women and issued 'various invitations'."

The Law List
15. It should be noted that on 23 February 1994 the Law List, under the heading "ACT Administrative Appeals Tribunal" referred to a "Stay Hearing" between the applicant, identified by surname only, and "Medical Board of the ACT".

16. It may be added that on 11 March 1994, a further similarly entitled entry appeared under the heading "ACT Supreme Court" in a lengthy motions list.

17. In each case the entry was in fine print.

Other Publicity
18. There was a brief news item on WIN Television on 21 February 1994, reporting the Board's action on that day. It did not provide any additional material which might identify the doctor referred to. There was a reference to "5 additional verbal complaints" apparently against other doctors.

Other Complaints
19. After the initial ten complaints were received and documented, additional enquires were undertaken. Some of the complainants had contacted Ms Frith, some had contacted the Board or the ACT Department of Health.

20. Following the receipt of statements of complaint from the first ten complainants, a further eight statements were taken by investigators engaged by the Board. One of these was from a further complainant. Six others were from persons who recalled more contemporary complaints by one or other of the complainants.

21. There was also included a statement from Ms Frith, the gist of which was that she had not volunteered the name of the applicant in question to any apparent complainant. If a caller identified the applicant as the medical practitioner of whom she complained, Ms Frith advised her to contact the Board. She also gave to complainants the phone number and address of the original complainant.

22. Not all persons who so contacted Ms Frith appear to have proceeded to contact the Board and thus provide a detailed statement of complaint.

23. After the eleven complaints referred to, one further person did make a detailed complaint of allegedly similar misconduct occurring in 1976.

24. The total number of complaints of which the Board has been given written details is 12.

25. None of the complainants have any apparent connection with each other prior to 7 February 1994, or, at least, none which would lead one of them to support, by similar fact allegations, a complaint made by the original complainant or any other of them.

26. The allegations, although shocking, are neither inherently incredible nor so repetitive of the detail given in the article of 7 February 1994 that they might be regarded as being obviously without factual foundation.

The Case for a Stay
27. The applicant cannot, in these proceedings, invite the Court to decide on the truth or falsity of any or all of the allegations. That is a matter for the Board under the Medical Practitioners Act. It may, of course, be found by the Board that some or all of the complaints are false, some or all are not proved to the necessary standard, or that some or all are established. That decision may well depend on the demeanour and presentation of various witnesses.

28. The applicant contends that, irrespective of that consideration, there are reasons for granting a stay. These may be summarised as follows:-

The applicant has now retired from general practice having enjoyed
a reputation for competence and ethical conduct. He had never
previously had any complaint proved against him either professionally
or otherwise.
Most of the complainants are unknown to the applicant. He has not
been able to identify them by reference to the name and description
in their complaints. No records exist in respect of any patients of
his for the period in question.
It seems that a culling of apparently obsolete records was conducted
in 1993, after the applicant's retirement from general practice. It
is not suggested that the destruction of those records was in any way
related to the allegations of the complainants.
The delay in complaint is productive of actual prejudice to the
applicant by reason of his lack of recollection and records.

29. Mr Horler QC, for the applicant, effectively submits that, in the present circumstances, the passage of time has prevented the possibility of a fair hearing of the allegations in question.

Jurisdiction to grant a stay
30. The parties were agreed that this Court had jurisdiction to grant a permanent stay of proceedings before the Board. That certainly follows from Walton v Gardiner (1993) 177 CLR 278. There was also agreement concerning the relevant considerations in determining whether such an order should be made. Those considerations were adverted to in Walton v Gardiner (supra).

31. This is not a case where the proceedings are clearly doomed to failure, or brought in an inappropriate forum, or unjustifiably vexatious or oppressive by reason of being substantially repetitive of previous litigation. However, the High Court has held that jurisdiction to grant a stay is not limited to those cases. The guiding principle is whether the proceedings in question can be conducted with fairness to the party called upon to defend them.

32. In Herron v McGregor and Ors (1986) 6 NSWLR 246 the Court of Appeal (NSW) stayed proceedings by the relevant medical disciplinary tribunal against various doctors and other health professionals involved in the notorious Chelmsford affair.

33. The relevant acts and omissions complained of occurred between 1973 and 1977. The "deep sleep" therapy ceased about 1979. By 1985 when the proceedings were commenced, the leading exponent of the treatment at Chelmsford, Dr Harry Bailey, had died.

34. In considering the issue of delay, McHugh JA said,

(254) "... While the Act contains no time limitation for lodging a
complaint it does not follow that a complainant, with knowledge of
the facts, can stand by and allow time to pass. The public interest
requires that complaints be lodged and dealt with as expeditiously as
possible ... A person with reasonable ground for complaint, therefore,
should pursue it with reasonable diligence. Memories fade. Relevant
evidence becomes lost. Even when written records are kept, long delay
will frequently create prejudice which can never be proved
affirmatively."

35. However, his Honour also noted that long delay in bringing proceedings is not enough by itself to render a complaint on abuse of process.

36. There had been, in Herron v McGregor and Ors (supra), previous civil proceedings, an inquest and complaints to the Health Department. No disciplinary proceedings were commenced until late 1985. The delay by the complainant, though subjectively understandable, was objectively inexcusable. McHugh JA concluded that the proceedings should be stayed notwithstanding that the basic facts complained of had already been found to exist in other litigation and that those basic facts constituted a prima facie case of professional misconduct.

37. In his Honour's view it was also the case that the antiquity of the complaints rendered it unlikely that the conduct complained of had any relevance to the appellant's fitness to practice in 1986.

38. It was held that it was, accordingly, unfair to allow the complaints to proceed.

39. Walton v Gardiner was a continuation of the same matter. It followed a well-publicised and long-running Royal Commission into the Chelmsford affair. It reported adversely to various medical practitioners involved. In 1991, further complaints were made to the relevant medical tribunal. Although similar in kind, they were not identical with the complaints stayed in 1986. The Court of Appeal stayed the new complaints.

40. On appeal from that decision the majority of the High Court, Mason CJ, Deane and Dawson JJ supported that decision. Their Honours noted that,

(389) "... the members of the Court of Appeal resolved the question
whether the proceedings in the Tribunal should be permanently stayed
by reference to a weighing process in which account was taken of
considerations of fairness to the respondents and of more general
considerations of public interest."

41. It was recognised that occasions warranting a permanent stay are likely to be rare. The "weighing process" involves a discretionary judgment balancing a variety of factors and considerations.

(396) "Among those factors and considerations are the requirements of
fairness to the accused, the legitimate public interest in the
disposition of charges of serious offences and in the conviction of
those guilty of crime, and the need to maintain public confidence in
the administration of justice. The question whether disciplinary
proceedings in the Tribunal should be stayed by the Supreme Court on
abuse of process grounds should be determined by reference to a
weighing process similar to the kind appropriate in the case of
criminal proceedings but adapted to take account of the differences
between the two kinds of proceedings. In particular, in deciding
whether a permanent stay of disciplinary proceedings in the Tribunal
should be ordered, consideration will necessarily be given to the
protective character of such proceedings and to the importance of
protecting the public from incompetence and professional misconduct
on the part of medical practitioners."

42. In Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, the High Court supported a decision not to order a stay of criminal proceedings where the offences allegedly occurred during a period between 1976 and 1979.

43. Mason CJ identified relevant factors in the following terms,

(33) "... they will generally include such matters as the length of
the delay, the reasons for the delay, the accused's responsibility for
asserting his rights and, of course, the prejudice suffered by the
accused. ... In any event, a permanent stay should be ordered only in
an extreme case and the making of such an order on the basis of delay
alone will accordingly be very rare."

44. Brennan J observed that five convenient reference points seem to emerge from a consideration of authorities both in the United States and in this country.

(i) The length of the delay;
(ii) Reasons given by the prosecution to explain or justify the delay;
(iii) Accused's responsibility for and past attitude to the delay;
(iv) Proven or likely prejudice to the accused;
(v) Public interest in the disposition of charges of serious offences
and in the conviction of those guilty of crime.

45. It was common ground in the present case that the length of the delay was extreme. It was, however, not the fault of the Board or any other relevant authority subject to a consideration of some circumstances surrounding the original complaint. None of the other accusations were drawn to the attention of the Board until recently.

46. Further, the applicant had done nothing to encourage or acquiesce in the delay in complainants coming forward. It was possible that the relatively young age (16-28 years) of the complainants when allegedly abused could have been taken as rendering complaint unlikely. However, there is no allegation of threats or pressure towards silence being exerted by the applicant on any complainant.

47. The delay on the part of the complainants is, of course, the subject of some explanation by each of them in their statements.

48. There is clear presumptive prejudice to the applicant in being unable, in most cases, to provide any positive defence or explanation other than denial. In all cases, but two, there is no relevant contemporary record.

49. I will examine these contentions further.

Length of and reasons for delay
50. The length of delay is plainly extreme. It is, of course, not so extreme as that involved in recent war crimes trials.

51. The reasons given by complainants for not earlier complaining, with one notable exception, was,

(i) a feeling that the complaint, being uncorroborated, would not be
accepted;
(ii) lack of knowledge of other complaints and that such other
complaints might provide corroborative evidence (see, for
example, Harriman v R [1989] HCA 50; (1989) 167 CLR 590);
(iii) a desire to suppress and not re-live unpleasant and distressing
memories; and/or
(iv) a desire to avoid the inevitable distress and embarrassment
which pursuing a complaint might bring.

52. The notable exception was the first complainant. She had, in fact, complained, first to her parents and then to police. She had also heard of another complaint before she took those steps.

53. Police records of the complaint still exist and they were produced. Not only did police investigate the complaint of the first complainant, they also had investigated a complaint from another woman, not one of the present complainants, who stated she had been sexually abused by the applicant in 1959.

54. The applicant had been informed by police of the first complainant's allegations and invited to comment thereon. He made a statement dated 25 July 1969.

55. The statement was to the effect that the first complainant had consulted him and given a history of pain on urinating and after sexual intercourse. She was having frequent intercourse, up to eight times nightly, with her boyfriend. The applicant considered an internal vaginal examination was necessary. He diagnosed part of her trouble as "too much sexual intercourse". He had difficulty achieving a proper examination due to tension and nervousness on the part of the patient.

56. Effectively, whilst not fundamentally disputing the first complainant's account, it was the applicant's contention that she misinterpreted the situation and his actions.

57. The investigation produced the following results,

(i) The complainant's landlady confirmed to police that she had
mentioned to the original complainant another person named "Sandra".
She told her that she had been informed that "Sandra" had complained
to the AMA about the applicant's conduct. No record of that complaint
has been produced or referred to. It does not seem to be the 1959
complaint referred to by police in the records produced.
(ii) The Secretary of the Medical Registration Board, as it then was,
was not prepared to dispute the claimed diagnosis, examination or
treatment attested to by the applicant in his statement to police.
(iii) The investigating officer, Detective Sergeant Kent, reported to
his immediate superior, Detective Inspector Kennedy, that the
complaint had some prima facie validity. He had formed no personal
view of the complainant's truthfulness but he reported that
Policewoman Sergeant Wendler believed the complaint to be truthful.
He noted that the complainant had not made a secret of her prior
sexual experiences.
(iv) His superior, Detective Inspector Kennedy, then made a report to
"the Superintendent". He expressed the opinion that the lack of
corroboration and "her reliability, if considered in respect to her
admitted moral code, tends one to a firm conclusion that any Court
Proceedings preferred against (the applicant), on the evidence
available could only result in failure".
(v) There was then a recommendation that the statements be referred
to the Medical Registration Board for action. That was done.
Dr Johnson, then Secretary to the Medical Registration Board,
advised Sergeant Kent, according to the latter's report, that
"... at all times doctors are instructed to have female employees
in attendance while conducting this type of examination ... he
(Dr Johnson) would like to call (the applicant) before the
Registration Board to warn him of his neglect to take such
precautions".

58. There is no evidence produced to me as to whether the applicant was ever advised, warned or instructed by Dr Johnson in the manner reported by Detective Sergeant Kent.

59. The applicant does have medical records relating to the second complainant. He last saw her on 16 January 1984. Because she was a continuing patient of the practice her medical records have been preserved. He first saw her, according to those records, in July 1966. She alleges that she was assaulted in 1973 when she was 16 years of age. The records disclose that she attended the applicant for consultations at least six times in 1973 (two further dates could be 1973 but I cannot decipher them sufficiently accurately from the copies annexed to the applicant's affidavit).

60. Certainly, the terms of the second complainant's complaint would suggest she thereafter did not see the applicant again but rather another doctor in the same practice. The medical records kept by the applicant suggest he saw her on numerous occasions and regularly, as a patient, after 1973, until 1984.

61. However, whilst the strength of this complainant's allegations may be weakened by those circumstances, it is for the Board to decide whether there was a good reason for the delay in complaining and for whatever continued association there was with the applicant. It has the task of considering whether doubts engendered by such continued consultations as there may have been are dispelled or not by the evidence as a whole. The Board will, no doubt, bear in mind that satisfaction as to the truth of one complaint does not require or entail satisfaction as to the truth of any other complaint.

62. The other complaints are not corroborated otherwise than by the evidence of some other persons who, prior to the article of 7 February 1994, had heard such complainants speak of sexual misconduct towards them having been perpetrated by the applicant.

63. On the present state of the evidence, six of the complaints are "corroborated" by such statements. Of course, I make no comment as to whether the Board will find such allegedly corroborative statements to be truthful or accurate. That is a matter for the Board on the hearing of the matter.

64. It must, be accepted that those complainants who made no previous official complaint may be said to have delayed their complaints to an extent that can only be regarded objectively as inexcusable. Those who have never previously revealed their complaint even unofficially have been guilty of even more inexcusable delay. That is not to say that their subjective reasons for that delay are not understandable.

65. In the case of the first complainant, at least some of the blame for delay must rest with police and the then Medical Registration Board. The reasons for not proceeding to test the complaint are, at least to my mind, not only unconvincing but grossly offensive to the complainant, regardless of whether or not her complaint would have been upheld. Of course, prosecution would then have been more difficult due to certain antiquated rules of evidence and, possibly, community attitudes, which were then in place. Such considerations should not, however, have inhibited the Medical Registration board. It could, at least, have given the complainant the satisfaction of a hearing.

66. In my view, the delay in relation to this complaint must be regarded as inexcusable and extreme.

Proven and likely prejudice to the applicant.
67. If the issue was whether it was reasonable for the applicant to undertake an internal examination of the complaints, then, clearly, save for the first two complainants, the applicant would be grossly prejudiced by the lack of relevant records, a lack caused by the absence of any contemporary complaint.

68. However, the Board has expressly stated that it accepts that it was reasonable for the applicant to undertake an internal examination of each of the complainants. It alleges that the applicant abused such occasions by masturbating or attempting to masturbate the complainants.

69. In the case of the first complainant, the applicant has the benefit of the police file. The Board should also have records. If it does not, then it must make appropriate allowances in favour of the applicant. For example, it should accept that the proposed "female present" counselling was not given, assuming the applicant does not concede the contrary.

70. The applicant, of course, denies that he has ever engaged in any deliberate acts of sexual stimulation of any of his female patients.

71. It is, no doubt, the case that there were many internal examinations of female patients which occurred without complaint. Indeed, one of the corroborating witnesses, a contemporary of one of the complainants, recounts such an examination by the applicant.

72. The bulk of contemporary records which might have corroborated the number of "normal" internal examinations of female patients are, of course, absent. However, that must require the Board to assume that the complaints made to it are the only complaints out of a vast number of occasions when such an examination might have been misconducted.

73. It may be, of course, as the applicant suggested to police in relation to the first complainant, that a minority of women in the circumstances of the complainants will believe they are experiencing an attempt at sexual excitation although that is not being attempted. It may be that lapse of time overlaid thereon will cause the Board to be cautious in accepting such long delayed complaints as factually accurate.

74. In Herron v McGregor (supra), (254-5) McHugh JA cited the difficulties occasioned by delay, even of five or six years, as recounted by Street CJ in the Humphreys Royal Commission,

"In the intervening five or six years, rumours waxed and waned. In
some cases suspicion underwent subtle change to belief, which itself
progressed to reconstruction, which in turn escalated to recollection.
No presently stated recollection could be safely assumed not to have
progressed upwards and not to be the product of one of these earlier
stages. The sheer frailty of human memory of necessity required a
most anxious and critical appraisal of the evidence of the witnesses,
no matter how credit-worthy they might be.
It became apparent that in the years since August 1977 the
recollections even of those with undoubted first-hand knowledge have
in some instances faded, in some instances fermented, and in some
instances expanded. Moreover, in many cases the realisation of the
significance - indeed, the enormity - of what had occurred has tended
to transmute into a more or less cynical acceptance of what had, or
was believed or rumoured to have, taken place."

75. It may be, of course, that even after the due caution the Board will be obliged to exercise, it would find one or more of the complaints proved. Whether in doing so it formed a conclusion which was unsafe and unsatisfactory would depend on the totality of the evidence. It is not possible to conclude that such a finding is inevitable or even probable.

76. There is clearly unfair prejudice to the applicant because of delay, that prejudice is not, in my view, so extreme as to render it impossible for the Board to arrive at a balanced and fair conclusion.

77. Nevertheless, if only due fairness to the applicant was to be considered, a stay would be justified.

The Public Interest
78. Unfairness to the applicant must be weighed against the public interest.

79. It is in the public interest that allegations having apparent validity be investigated and adjudicated upon. The public needs to have confidence in medical practitioners dealing with female patients and at least to know that complaints of misconduct will be seriously and carefully considered. That is not to say that the public interest demands an unfair process so far as practitioners are concerned.

80. In some cases, the public interest will be served by reassurance that the alleged misconduct did not occur or having been the subject of fair and thorough proceedings even if unproved. Some complainants, not necessarily those in the instant case, will find reassurance in a realisation that they may have been in error or, at least, in having had a fair hearing. That is also in the public interest.

81. There is a public interest in punishment of misconduct. That is not because disciplinary proceedings are primarily punitive. They are protective of the public. However, part of that protective process is the inevitability of penalties for proven misconduct. In some cases a lack of utility in the proceedings will justify a stay. In Walton v Gardiner, for example, one of the respondent doctors had retired from practice. He suffered chronic ill-health and was never going to resume practice.

82. This applicant has retired from general practice but, although now 68 years of age, does practise part-time in a limited area of medical practice. It is possible, though it would be for the Board to decide, that disciplinary action would serve no useful purpose. No compassionate grounds for a stay are relied on in these proceedings.

83. It seems to me, however, that weighing the public interest against the inexcusable delay and the nature and extent of the prejudice to the applicant in the continuation of the disciplinary proceedings before the Board, a stay should be refused.

84. I will hear the parties as to costs.