Hoile v Medical Board of South Australia [1960] HCA 30; (1960) 104 CLR 157 (27 May 1960)

HIGH COURT OF AUSTRALIA

HOILE v. THE MEDICAL BOARD OF SOUTH AUSTRALIA [1960] HCA 30; (1960) 104 CLR 157

Medical Practitioners

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

Medical Practitioners - Infamous conduct in a professional respect - Sexual relations between hospital superintendent and nurse on duty - Hearing of charge by Medical Board of South Australia - Function of Supreme Court - Right of appeal - Medical Practitioners Act 1919-1955 (S.A.), s. 26* - Acts Interpretation Act 1915-1936 (S.A.), s. 34 - Judiciary Act 1903-1955 (Cth), s. 35.

HEARING

Sydney, 1960, April 21, 22; May 27. 27:5:1960
APPEAL from Supreme Court of South Australia.

DECISION

May 27.
THE COURT delivered the following written judgment: -
The appellant, Edward Murray Hoile, has appealed as of right from an order Abbott JJ.) directing that his name be removed from the register of medical practitioners kept under the Medical Practitioners Act 1919-1955 (S.A.). The order was made on the application of the Medical Board of South Australia. That Board had heard a charge against Dr. Hoile, the appellant, that he had been guilty of infamous conduct in a professional respect. Dr. Hoile had practised at Kingscote in Kangaroo Island where the Kangaroo Island General Hospital was situated. The population of the island is said to be about 3,300 and the hospital doubtless is an ordinary country hospital. Dr. Hoile who lived next door to the hospital was its medical superintendent. At the material time there was a matron and a staff of two qualified sisters, two nurse attendants and one or two trainees. One of the nurse attendants was a married woman separated from her husband. She was from the Netherlands and she used her maiden name Loos. The particulars of the charge against Dr. Hoile were that between September 1958 and January 1959 inclusive, whilst holding the appointment of medical superintendent of the hospital he had sexual relations with Nurse Loos then employed as a nurse in the hospital. After a hearing, upon which Nurse Loos gave evidence but Dr. Hoile did not give evidence, the Board reported that they were satisfied beyond reasonable doubt that during the period mentioned while holding the appointment of medical superintendent Dr. Hoile had sexual relations with Nurse Loos on several occasions and that on at least two occasions intercourse took place on hospital premises while Nurse Loos was on night duty and that on at least one of these occasions she was the only member of the nursing staff on duty. There was no denial of this conduct. On the question of its amounting to infamous conduct in a professional respect the report of the Board said this: "In the opinion of the Board, Dr. Hoile, by reason of his being Medical Practitioner and Superintendent of the Hospital had a professional relationship with the nursing staff of the Hospital, and his presence at the Hospital and his relations with the nursing staff arose from his professional duties as Medical Superintendent at the Hospital. This, in our opinion, brings his admitted misconduct with Nurse Loos in the Hospital premises, particularly on the occasions when she was on duty at the Hospital, under the heading of 'infamous conduct in a professional respect'. It involves an abuse of the relationship which arose directly out of his status as a Medical Practitioner and the Superintendent of the Hospital which we have no doubt would be condemned by right thinking medical men." (at p160)

2. The order of the Supreme Court is based upon the report which their Honours fully accepted. Little need be added by way of fact to what the report states. Dr. Hoile was a married man with children; indeed his wife was a patient in the hospital from 2nd January to 12th January 1959, having there given birth to a child on 2nd January. During January the matron was absent, returning on 7th February 1959. Nurse Loos had joined the staff as nurse attendant some time in 1957. During September 1958 some difficulty arose because members of the nursing staff ascertained that Dr. Hoile was in the room of Nurse Loos and they reported the matter to the matron who after an interview between herself and Dr. Hoile in turn reported it to the hospital secretary. This incident did not apparently prevent an improper relationship continuing or arising between them. They were observed to kiss and embrace and according to the direct evidence of Nurse Loos sexual intercourse took place between them during hours of duty in patients' cubicles that were empty. The ground of the appeal to this Court was in substance that Dr. Hoile's conduct, infamous or not, was not infamous conduct in a professional respect. (at p161)

3. The case is governed by s. 26 of the Medical Practitioners Act 1919-1955. That section provides that, in conditions which it specifies, the name of a person may be removed from the register of medical practitioners by order of the Supreme Court or a judge thereof on application by motion made in that behalf by the Medical Board of South Australia and such person shall upon the removal of his name cease to be registered. There is a proviso that the name so removed may be restored by order of the Supreme Court and thereupon such person shall again be a registered person. The conditions specified vary in character. One condition relates to the manner in which registration has been obtained; the name may be removed if it has been obtained by fraud or misrepresentation. Another relates to the withdrawal by a university or other body of the qualification of the person. A third condition is concerned with conviction of the person of felony or misdemeanour. It is upon the fourth condition that this case depends. It provides that the name of a person may be removed "who is deemed by the board to have been guilty of infamous conduct in any professional respect". (at p161)

4. Upon the structure of this section more than one question of interpretation arises. First, what is the duty or function of the Supreme Court or the judge thereof? Is it to investigate the facts for itself independently of the Board? The answer must surely be, no. The duty of the Court or the judge must be to see that the Board has duly "deemed" the person to have been guilty of infamous conduct in a professional respect. It will not have been duly done if the procedure has not been in accordance with law and with the requirements of natural justice. There must have been sufficient materials before the Board and it must not have misconceived its function. The behaviour of the person appearing from the materials must be capable of being deemed infamous conduct in a professional respect. But once the Court sees that the condition is fulfilled and the Board has duly deemed the person to have been guilty of infamous conduct in a professional respect the Court must then turn to its power to remove the name. As to its power, two opposed contentions were put forward. On the one side it was said that the word "may" did not connote a discretion. It conferred a power which it became incumbent upon the Court to exercise. Whether this view is tenable is a question which on the facts of the case we need not decide. But the observation should be made that it is a view which seems to be antagonistic to s. 34 of the Acts Interpretation Act 1915-1957 (S.A.) and in any case one which in the absence of that provision would not necessarily be justified in principle. On the other side it was said not only did the section confer a discretion to remove the name or not but, having regard among other things to the proviso, it meant that the Court might suspend the practitioner or even resort to some milder form of discipline. This contention cannot be sustained. It seems probable that there exists in the Court a discretion but if so it is a discretion to remove the name from the register or not to do so. (at p162)

5. The words "deemed . . . guilty of infamous conduct in a professional respect" have been the subject of judicial authority. They are words taken from s. 29 of the Medical Act 1858 (21 & 22 Vict. c. 90). There the word was not "deemed" but "judged" (scil. by the General Medical Council). In Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750 Lopes L.J. (1894) 1 QB, at p 763 drew up a definition which, however, he said he did not propound as exhaustive. It was adopted by Lord Esher M.R. (1894) 1 QB, at p 760 and apparently by Davey L.J. (1894) 1 QB, at p 763 . The definition was as follows:"'If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency', then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect'" (1894) 1 QB, at p 763 . (at p162)

6. It is perhaps a pity that the use has been continued of the word "infamous" which in ordinary speech today has strengthened its meaning. But it is best represented by the words "shameful" or "disgraceful"; and it is as conduct of a medical practitioner in relation to his profession that it must be considered shameful or disgraceful. The argument in the present case is that for Dr. Hoile to commit adultery in the hospital with a nurse was not shameful or disgraceful conduct in a professional respect. The fact that it was committed by a medical superintendent with a nurse and in the hospital were treated by the argument as so to speak accidental features clothing his conduct with no professional aspect; disgraceful it may have been for the man as well as for the woman, but it did not touch his profession. (at p162)

7. This is a view that cannot be accepted. No one maintains that all serious departures on the part of a medical practitioner from the standards of moral conduct amount to misconduct in a professional respect. But if his professional relationships are the occasion or source of the misconduct and it is sufficiently serious it may be deemed by the Medical Board to be infamous conduct in a professional respect. The case here is of a doctor attending a hospital and in frequent contact with the nursing staff. To the authority which, at all events as to her duties with reference to the patient, a doctor exercises over the nurse is added his formal position as superintendent of the hospital. His duty brings him to the hospital at all hours and in the hospital itself he and the nurse take advantage of the empty cubicles to commit adultery, she at the time being on night duty. One who makes a critical examination of the words of the definition framed by Lopes L.J. (1894) 1 QB, at p 763 may seize on the expression "in pursuit of his profession" as not accurately fitting the case. But that definition is not exhaustive and moreover the case is plainly within its general intendment. Cf. In re Robson (1952) SASR 101, at p 106 . However much the general moral aspect of the matter may be emphasized as going to the relationship between man and woman, it remains true that the place was the hospital, the woman was a nurse, the man was a doctor and moreover superintendent of the hospital. It arose out of a relationship professionally established and it was destructive of the position he should have held in the hospital and of his influence. All these are matters enabling the Board to find as they did. Removal of Dr. Hoile's name from the register may spell disaster to him but that is the only discipline which in the interests of his profession the legislature has authorized. The order of the Supreme Court was clearly right and the appeal should be dismissed with costs. (at p163)

8. It may be desirable to add that in view of this conclusion it has been thought unnecessary to express any view in this case as to an appeal lying as of right under s. 35 of the Judiciary Act 1903-1955 in a case affecting professional status. (at p163)

ORDER

Appeal dismissed with costs.