CN v Commission for Children and Young People [2002] NSWADT 269 (18 December 2002)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: CN v Commission for Children and Young People [2002] NSWADT 269

PARTIES: APPLICANT

CN

RESPONDENT

Commission for Children and Young People

FILE NUMBERS: 024035

HEARING DATES: 29/08/02

SUBMISSIONS CLOSED: 29/08/2002

DECISION DATE: 18/12/2002

BEFORE: Kelly T (Deputy President)Gelin B - MemberBolt M - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Child Protection (Prohibited Employment) Act 1998

CASES CITED: AG v Commission for Children and Young People [2001] NSWADT 163

L v Commission for Children and Young People (2001) NSWIRComm 134

R v Commission for Children and Young People (2002) NSWIRComm 101

Briginshaw v Briginshaw [1938] HCA 34; 1938 60 CLR 336

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

C Chartaris, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

V Hartstein, barrister

ORDERS: Date of Orders 30 August 2002

The Tribunal declares that the Child Protection (Prohibited Employment) Act is not to apply to the applicant in respect of the offences of aggravated indecent assault and indecent assault committed 18 October 1993 and 10 November 1993 subject to the following conditions:

(a) the applicant shall not consult with or treat any patient who is under 18 years of age in any consulting room in the absence of that patient's parent or guardian unless the parent or guardian is not reasonably available whereupon a staff member of the applicant who is aware of this order must be present.

(b) the applicant shall not participate in the transfer from a trolley to an operating table of any pre-operative patient in any hospital who is under the age of 18 years.

(c) The applicant shall not participate in the transfer from any operating table to any trolley of any post-operative patient in any hospital who is under the age of 18 years.

(d) The applicant shall have no physical contact with any patient who is under the age of 18 years in any hospital other than in the presence of a medical practitioner or member of the nursing staff.

(e) The applicant shall give a copy of this order to the chief executive officer or clinical director of any hospital or medical practice he works in.

Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

1 The applicant who is now 64 years of age has 2 convictions for sexual offences within the meaning of the Child Protection (Prohibited Persons) Act 1998 ("the Act") which occurred in 1993 when he was 55 years of age. As a consequence he is prohibited by the Act from engaging in child related employment unless the tribunal declares otherwise. The applicant now seeks such a declaration in respect of his work as an ear nose and throat surgeon in various country towns to allow him to operate on patients in hospitals and consult with patients in his consulting rooms. The applicant does not dispute that he is a prohibited person as defined by the Act.

2 The statutory respondent to such applications is the Commission for Children and Young People does not oppose the declaration provided certain conditions are attached to any such declaration. These proposed conditions are set out in paragraph 9 hereunder.

Issues

3 There two questions that must be answered in order for the Tribunal to determine whether a declaration should be granted. These are:

(a) Does CN pose a risk to the safety of children taking into account the provisions of s. 9(5) of the Act?

(b) Should any conditions attach to any declaration the tribunal makes in favour of the applicant?

The offences

4 On 8 September 1995 the applicant was convicted of two charges of indecent assault committed against two female patients on 18 October 1993 and 10 November 1993. These offences were committed whilst the applicant was assisting in the postoperative transfer of each patient from the operating table to the recovery trolley. They were described by His Honor Judge Nash when sentencing the applicant: "You put your hand under the blanket and that hand went to the pubic area of each of these girls. I am satisfied that you put your hand there for some form of sexual gratification and that you moved your hand almost certainly among the pubic hair of each of the patients". There was no allegation of any form of penetration. One of these female patients was aged 23 years upon whom the applicant had just performed a tonsillectomy and the other was aged 13 years upon whom he had just performed a tympanoplasty (a complicated ear operation).

5 The applicant unsuccessfully defended the allegations before the Medical Tribunal and in criminal proceedings before a District Court judge and jury and he continues to deny them. Section 5(1) of the Act states that if a person is convicted of a serious sexual offence the tribunal must accept the convictions and is not able to reconsider them.

6 The Medical Tribunal found the applicant guilty of professional misconduct on 9 December 1994 and suspended him from the practice of medicine for 6 months and imposed the following conditions upon the applicant's practice of medicine: "That he take no part in the transfer of patients from the operating table to the recovery trolley".

7 The District Court, on 8 September 1995, ordered the Applicant to enter a recognizance to be of good behaviour for 2 years and fined him $15,000.

8 It is common ground that the offences for which the applicant was convicted are serious sex offences and the applicant is a prohibited person as defined by the Act.

9 The applicant has not been charged with any criminal offence before or since the above referred convictions, nor is there any evidence of any subsequent allegations whatsoever. There was evidence that before the time of the offences the applicant used a similar procedure to rotate unconscious post-operative patients but there was no evidence before the tribunal of any previous act of indecency.

10 The respondent submitted that any declaration should be subject to the following conditions:

(a) that the applicant not consult with or treat any client of patient aged under 18 years in any consulting room in the absence of the child's parents or adult guardian

(b) that the applicant not participate in the transfer of any preoperative patient aged less than 18 years from the recovery trolley to the operating table

(c) that the applicant not participate in the transfer of any postoperative patient aged less than 18 years from the operating table to the recovery trolley

(d) that the applicant not have any physical contact with any hospital patients aged less than 18 years other than in the presence of a medical practitioner or member of the nursing staff who is aware of the term of this order

(e) that the applicant provide a copy of this order to the executive of any hospital or medical practice he joins

(f) that a copy of these orders be served on the following:

(i) New South Wales Commissioner of Police

(ii) Chief Executive Officer of each of the 2 private hospitals where he has recently been operating

(iii) New South Wales Medical Board

(iv) Director of the Health Care Complaints Commission

(v) Manager of Employment Screening Unit of Department of Health

11 The applicant accepted most of the conditions but wished to add the words "or staff member" to proposed condition 1(a) and wished to have deleted the words "who is aware of the terms of this order" . He did not want a copy of the order to be served on the Health Care Complaints Commission.

Legislative provisions

12 In summary, the Act makes it an offence for people convicted of "serious sex offences" to apply for or undertake "child related employment." The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below.

13 Subject to certain defences and transitional provisions, the Act makes it an offence for a person convicted of a " serious sex offence" (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment.

14 Section 6(1) states that:

A prohibited person must not:

(a) apply for child-related employment, or

(b) undertake child-related employment, or

(c) remain in child-related employment.

Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.

(2) Defence

It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.

15 A "prohibited person" is defined in s 5 of the Act. That section states that:

(1) For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection.

(2) For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence.

16 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the Act .There is no dispute in this case that the offences of indecent assault for which CN has been convicted are "serious sex offences" or that CN is "a prohibited person"

17 "Child" and "Child-related employment" are defined in s 3.

"Child-related employment" is defined in s 3:

means any employment of the following kind that primarily involves direct contact with children where that contact id not directly supervised:

(vi) employment in wards of public or private hospitals in which children are patients,

(xiv) employment involving the direct provision of child health services.

18 Subject to certain transitional provisions, the Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child related employment.

19 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that sections states that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.

(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person's total criminal record,

(f) such other matters as the tribunal considers relevant.

(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.

(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.

(9) Orders under this section may be made subject to conditions.

(10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

Confidentiality

20 In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of (Administrative Decisions Tribunal Act 1997 s 126(1).

21 Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons we refer to the applicant as "CN" The official copy of the orders provided to the parties includes the name of the applicant.

Evidence

22 The applicant is a rural-based ear, nose and throat surgeon aged 64 years. He was aged 55 years at the time of the offences. He became a general surgeon in 1967 and has practiced as an ear, nose and throat surgeon since 1969. He has lived and practised medicine in rural New South Wales and has consulting rooms in several country towns, and where several staff are always on duty when he is seeing patients.

23 The public hospital where the offences were committed in 1993 immediately suspended the applicant and subsequently four other public hospitals where he operated did so on a gradual basis, the last in 2001. In recent years the applicant has been operating exclusively in 2 private hospitals in 2 regional centres and seeing patients in his consulting rooms in several country towns.

24 One of the aforementioned private hospitals temporarily suspended the applicant on 24 April 2002 pending the outcome of any application to this tribunal.

The other has allowed him to operate on patients above the age of 18 years.

25 The applicant has imposed on himself the strict practice of never seeing a patient under the age of 18 years in his consulting rooms unless a parent or guardian is present and should there be no parent or guardian available then he will see the patient in the presence of one of his staff. In the private hospitals where he operates when conducting his rounds to see his patients in the wards the applicant is always accompanied by a nursing sister who is aware of the need for her presence.

26 The applicant produced various references in support of his application:

(a) The Chief Executive Officer of one of the aforementioned private hospitals where the applicant has operated since 1997 stated that he had abided by the conditions of the Medical Tribunal and that there had been no complaints from staff or patients and that the applicant had imposed an extra condition that a nurse always accompany him during postoperative rounds.

(b) Mr. J, the Chief Executive Officer of the other aforementioned private hospital wrote positively of the applicant as a clinician and stated:

In supporting the application the hospital has already implemented a number of precautions for children who are admitted. These include:

All medical officers have to be accompanied when dealing with persons under the age of 18 years.

The applicant has restrictions when transferring patients. He has always observed this condition of his licence.

The applicant is supervised when dealing with any patient while in the hospital.

(c) Dr B, chairman of the applicant's local medical association stated there had been no complaints about any aspects of the applicant's practice and that his treatment of all people including children is exemplary,

(d) Dr F, an anesthetist, with whom the applicant has worked for 4 years gave a commendable reference in regard to the applicant's skills and personal traits and popularity with hospital staff. He also stated that the applicant has rigidly abided by the conditions set by the Medical Tribunal and that he had observed no aberrant behaviour by the applicant.

(e) A reference was produced from Dr B, an anesthetist, who has worked regularly with the applicant for 6 years. He wrote highly of his skills and his approach to patients and stated that he had seen no evidence and heard no reports of any improper conduct by the applicant.

(f) Dr L, a GP who refers patients to the applicant wrote that he regarded the applicant's clinical skills highly and further stated that all of the applicant's dealing with Dr L's patients have been completely ethical and honourable.

(g) Letters were produced from the staff who are employed in the applicant's private rooms being an allergy technical nurse, and a secretary, who stated that the applicant always had a parent of guardian present when consulting with a patient under the age of 18 years; an employee who stated the patient was always accompanied by an adult or a parent; and a secretary who she had never seen an unaccompanied child enter the consulting rooms.

(h) There is also evidence of long term community service including that given to the local Aboriginal community.

27 (a) the applicant stated that he agreed to proposed condition 1(a) but wished to add the words "or staff member", to cover the situation where a parent or guardian was not available such as if a youth is brought in to his room in an emergency situation having fractured his nose in a football game. The Respondent stated that an employee might not complain if (s)he witnessed something improper, a staff member might have to leave the room, or he might travel to a town with only one staff member who may be too busy to attend as a witness. The applicant stated there were always at least two staff members on duty.

(b) the applicant objected to proposed condition 1(d) and wished to delete the words "who is aware of the terms of this order", as he said that it would be humiliating for him to have to inform staff of the convictions; that the condition as acceptable to him had worked well for 9 years; that staff can turn over half way through an operation and it would be most awkward and impractical to stop the operation to disclose his conviction; that all hospital staff who accompany him on his rounds are made aware of the need for their presence by the hospital authorities.

(c)The applicant objected to the Health Care Complaints Commission being served with a copy of the orders. The respondent stated that this was proposed for the applicant's benefit in case there was a complaint against the applicant for doing something that the orders permitted.

Expert Evidence

28 The applicant produced a detailed report of a clinical assessment dated 16 August 2002 from Dr Rosalie Wilcox, a forensic psychiatrist which concluded:

[The applicant] is a 64 year old married man who has four adult children. He has been employed as an ENT surgeon for over 30 years.

In September 1995 he was suspended from medical practice for over 6 months after the Medical Tribunal found him guilty of professional misconduct and he was convicted in the District Court of two counts of indecent assault. The charges arose when he was purportedly observed to place his hand on the genital area of two female patients while transferring them from the operating table to the recovery trolley. He had had no prior allegations of a similar nature. At the time of the offences there was no indication that he was suffering from a mental illness or was unduly stressed. He does not have a current psychiatric diagnosis and there was no relevant history of substance abuse.

After he completed his 6 months suspension for medical malpractice, he made every effort to ensure that he was not in any situation where he could be at risk. When he was required to consult with a child under the age of 18 he insists that a parent or guardian is present. He is not involved in the transfer of any patients from the operating table to the recovery trolley.

Despite being found guilty of the charges he has steadfastly maintained his innocence and is aware that this could signify a lack of insight and a lack of remorse. He claims that he charges arose because nurse wanted to get back at him. This explanation although possible is somewhat implausible in view of the fact that there were 6 people prepared to state that they has witnessed his actions.

If he did commit the offences, I believe his actions are out of character and there is no indication that he is prone to sexually deviant behaviour. He is a religious man who has a strong faith, in a stable relationship with a supportive family. He has donated his time to a number of causes and is particularly interested in education.

I also believe that it is not necessary for him to acknowledge his guilty (sic) as long as he is prepared to maintain appropriate safeguards. The references provided by various colleagues indicate that his behaviour has been exemplary over the past few years and that he provides a very well needed services.

In conclusion, based on my assessment of the applicant, and my perusal of the available documentation, I believe that he does not pose a risk to the safety of children.

29 Dr Wilcox was not required for questioning on her report.

30 The respondent produced a detailed report dated 15 August 2002 of Dr Christopher Lennings, a psychologist and Senior Lecturer in Behavioural Sciences at the University of Sydney. He stated that the applicant was of above average intelligence. He administered to the applicant the Personality Assessment Inventory and objective assessment of personality that did not indicate any psychopathology.

31 Dr Lennings also considered the risk categories developed by the British Columbia Institute of Family Violence. These are actuarial scales which consider various static risk variables and rate a person as either low, low/medium, medium/high or high risk of sexual offences. The applicant was considered low risk on all the criteria other than that termed "denial or minimisation" on which he was rated medium/low. Dr Lennings went on the say "overall, the evaluation factors thought to be predictive or associated with sexual offending reveals (sic) a low to medium/low risk for the applicant. This risk is based on the extreme denial he evinces, the fact that I must assume the offences occurred as found and that the applicant is completely closed to this possibility and hence has no motivation to willingly engage in protective behaviours. Nonetheless there is an absence of factors suggesting high levels of sexual deviancy or high levels of social dysfunction which would increase his risk".

32 Dr Lennings also administered the Static 99 Actuarial Risk Assessment which has a predictive accuracy of around 40% which rated the applicant as a low category.

33 Dr Lennings stated that the data available suggested that risk accrued over a 25 year period after an offence and is greatest in the first ten years after the offence. We note that the offences occurred 9 years ago.

34 Dr Lennings went on to speculate as follows:

The dissonance between the applicant's presentation and the fact that a measure of risk-taking behaviour must have been present raises the risk loading for the applicant. Although ordinarily the applicant does not present as a risk taker, the fact that he would undertake sexually inappropriate behaviour in full view of operating theatre staff and without apparent concern for being caught, can only mean a degree of compartmentalisation of his personality that does suggest a degree of risk remains. How to quantify this is difficult. Although the applicant did not appear to be overly grandiose or vain, his behaviour suggests a degree of arrogance that implies a measure of flawed character that is well defended against in formal assessment. For it to be so well defended suggests that at some level the applicant must be aware of it.

It seems that the best way to explain the applicant's behaviour is through the mechanism of risk taking rather than sexual deviance per se. Although ordinarily a man with considerable pro-social attitudes and behaviours, he also appears to be a person of considerable driving force. His hobby as an advocate, taking on government in pursuit of educational policy, as well as his pursuit of `causes' such as improving the health of Aborigines, suggest a man with great energy and purpose of mind. Such attributes are largely pro-social, but also appear to spill out into the current offence. The applicant seeks intellectual stimulation. He seeks challenges in his work. I believe he also seeks a measure of excitement in his professional life, and the kinds of surreptitious `touching' he has been found guilty of is exciting not so much for the sexual gratification, but simply because he is able to do it, and get away with it. His high ability and high energy can lead him to become from the beliefs of others.

I can only presume the applicant does have a kind of `hidden self' which gains excitement from being exposed in what most would regard as a dangerous situation. The fact that the applicant is either unaware of this flaw in his character, or is simply expert at hiding it, means that under similar circumstances, the same behaviour may well emerge, despite the severe consequences he has already experienced. However, it should be noted that the circumstances in which such behaviour occurs are extremely unusual. The apparent requirement for such behaviour to occur, includes the requirement that the victim be anesthetized. External control of this behaviour can be readily achieved by the continuing prohibitions put in place by the Medical Tribunal".

35 Dr Lennings concluded: "Overall, my view of the matter is that some risk remains of a similar offence but such a risk can be easily dealt with by requiring the prohibitions of the Medical Tribunal to be continued. My belief is that the applicant's behaviour does not represent a generalised risk taking tendency or a generalised sexual deviancy but rather a limited expression of his risk taking based on the fact that he has got away with it in the past. In general the applicant is able to satisfy his need of excitement in pro-social ways and his avenues for illicit excitement having been terminated, the risk of substitution is very low ... Outside the limited circumstance of the operating theatre I believe his patients would be quite safe with him".

36 Dr Lennings was not required for questioning on his report.

Reasons and decision

37 We turn firstly to the factors that must be taken into account pursuant to s 9(5) of the Act:

(a) Judge Nash when sentencing the applicant stated: (the) seriousness of what occurred objectively comes within the lower range of criminality for this type of offence. Although the offences might come within the lower range of indecent assault the tribunal must consider their seriousness as a sex offences as referred to in s. 9(5) of the Act. No physical harm came to either of the victims nor does it appear that any was intended. The victims had no knowledge of what occurred but the applicant's apprehension necessitated the interviewing of the victims thereby giving them knowledge of what happened to them, which must have made the victims and their families feel very distressed. However the seriousness of the offence lies in the position of trust that the applicant abused and the absolute power a surgeon has over an anaesthetized patient. The offences were in the middle range of serious sex offences.

(b) It is 9 years since the offences, which is near the end of the 10 year period that Dr Lennings stated that research shows is the period of greatest risk of an offender reoffending.

(c) The applicant was aged 55 years at the time of the offences an age of maturity that gives him no mitigation. The age of the youngest victim particularly is an exacerbating factor, although the real power imbalance is the unconsciousness of the victims.

(d) Many persons attested to the applicant's exemplary character and this was not challenged. There have been no convictions before or after 1993 and there have been no complaints of any misconduct since 1993, and in view of the publicity of the applicant's convictions received in the rural community where he works there is little doubt that any evidence of subsequent misconduct would have been likely to have emerged.

38 S. 9(4) states that the tribunal to can not make an order in the an applicant's favor unless it considers that he does not pose a risk to the safety to persons under the age of 18 years.

39 The applicant argued that there must be a real or appreciable risk. Certainly risk cannot mean that the tribunal must be satisfied that an applicant is totally risk free. Few if any persons even if they have no conviction for a serious sexual offence could satisfy such a strict criterion. Judicial Member Britton in AG v Commission for Children and Young People 2001 NSWADT 163 referred to relevant risk.

40 Justice Peterson in the NSW Industrial Commission in L v Commission for Children and Young People (2001) NSWIRComm 134 at paragraph 27 stated:

Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm.

41 Mr. Justice Haylen of the NSW Industrial Commission in R v Commission for Children and Young People (2002) NSWIRComm 101 at paragraph 104 stated:

Risk referred to in s 9(4) is not merely theoretical or possible risk arising from the fact of a previous conviction, but is a reference to an unacceptable risk. A real risk, a likelihood of harm or a recognisable potential having regard to the need to ...protect children...

Haylen J adopted the words unacceptable risk from Minister's LoPo's second reading speech and the report of the Royal Commission conducted by Mr. Justice Wood from whose recommendations the Act was conceived.

42 There were two expert reports before the tribunal both of them credible. Dr Wilcox stated I believe that he does not pose a risk to the safety of children, although she also referred to the applicant being prepared to maintain appropriate safeguards. Precisely what she meant by this we are uncertain as we did not have the benefit of the cross-examination as the respondent stated that as the applicant did not seek an unconditional declaration there was no need to cross-examine Dr Wilcox on risk. However we note that Dr Wilcox in her report also referred to the various character references which we have summarised in paragraph 24 above, and we believe it likely that the safeguards to which she refers to are those the Applicant has self-imposed together with the condition imposed by the Medical Tribunal which are referred to in those references.

43 The applicant was rated in the lowest category in all the tests conducted by Dr Lennings with the exception of that which considered his denial of the offence. Dr Lennings considered that some small risk remains which can be easily be dealt with by requiring the prohibitions of the medical Tribunal to be continued.

44 The evidence before the Tribunal allows it to be comfortably satisfied on the civil standard of proof as enunciated in Briginshaw v Briginshaw [1938] HCA 34; 1938 60 CLR 336 at 361-362, that the applicant does not pose an unacceptable risk to persons under the age of 18years provided conditions are imposed pursuant to s.9(9) of the Act which deal with the qualifications to the opinions of the 2 experts.

45 The tribunal will impose all the conditions that both the applicant and the respondent agree on. In considering the conditions that the respondent desires and that the applicant resists the tribunal will consider the reasonableness the practicality and the utility thereof.

46 There are parts of only two of the conditions that the applicant resists:

(a) proposed condition 1(a): the applicant argued quite persuasively that there will be time when a parent or guardian will not be available. There are various examples that come to mind: for example a youth with a fractured nose brought in from the football field; a 17 year old person who is well able to find and reattend at the applicant's rooms for a follow up whose parents can not come because of their work commitments. The attendance of the parent or guardian is the prima facie desirable but when that is not possible and in order that the applicant is able to treat emergencies or to avoid inconveniencing patients, a staff member should be allowed to witness provided that person is aware of the tribunal order. This has been the applicant's practice for the last 9 years without any evident problems.

(b) Proposed condition 1(d): the applicant was concerned that he might have to canvass his history mid-way through an operation, and argued that he had been working under the circumstances of the condition as proposed by him successfully for some years. The applicant's arguments are persuasive. Furthermore the respondent's requirement would be difficult to enforce as the applicant may not know precisely which staff knew and which did not. Nor could the tribunal make man order against an applicant that a hospital inform members of it's staff of the order as the hospitals are not parties to these proceedings. The tribunal registry will be sending a copy of the order to the two hospitals where he presently operates and the applicant will have to provide a copy of the order to the executive of any other hospital he joins in the future.

(c) The respondent proposed that the tribunal serve a copy of the order on the Health Care Complaints Commission so that any complaint by a person who thought that the was breaching the order when he was not would not have to be referred to the applicant by the Commission . It was for the applicant's benefit. If he does not want it then it should not be included.

Order

47 The Tribunal declares that the Child Protection (Prohibited Employment) Act is not to apply to the applicant in respect of the offences of aggravated indecent assault and indecent assault committed 18 October 1993 and 10 November 1993 subject to the following conditions:

(a) the applicant shall not consult with or treat any patient who is under 18 years of age in any consulting room in the absence of that patient's parent or guardian unless the parent or guardian is not reasonably available whereupon a staff member of the applicant who is aware of this order must be present.

(b) the applicant shall not participate in the transfer from a trolley to an operating table of any pre-operative patient in any hospital who is under the age of 18 years.

(c) The applicant shall not participate in the transfer from any operating table to any trolley of any post-operative patient in any hospital who is under the age of 18 years.

(d) The applicant shall have no physical contact with any patient who is under the age of 18 years in any hospital other than in the presence of a medical practitioner or member of the nursing staff.

(e) The applicant shall give a copy of this order to the chief executive officer or clinical director of any hospital or medical practice he works in.