Gorman v NSW Medical Board [2010] NSWCA 26 (3 March 2010)

Last Updated: 4 March 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Gorman v NSW Medical Board [2010] NSWCA 26
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40344/09

HEARING DATE(S):
10 February 2010

JUDGMENT DATE:
3 March 2010

PARTIES:
Richard Francis Gorman
NSW Medical Board

JUDGMENT OF:
Giles JA Tobias JA Campbell JA

LOWER COURT JURISDICTION:
Medical Tribunal of New South Wales

LOWER COURT FILE NUMBER(S):
Medical Tribunal 40001/09

LOWER COURT JUDICIAL OFFICER:
A Balla DCJ

LOWER COURT DATE OF DECISION:
2 July 2009


COUNSEL:
A: In person
R: Ms K Richardson

SOLICITORS:
A: In person
R: Crown Solicitor

CATCHWORDS:
ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Relevant considerations – Unreasonableness – Bad faith – Procedural fairness – Bias – Absence of evidence
APPEAL AND NEW TRIAL – Appeal - practice and procedure – New South Wales – When no appeal lies – Whether the appeal to the Supreme Court under s 90 of the Medical Practice Act against the decision of the Medical Tribunal of NSW is incompetent – Appellant must be a person about whom a complaint has been referred to the Tribunal
PROFESSIONS AND TRADES – Health care professionals – Medical practitioners – Disciplinary proceedings – Proceedings before boards, tribunals, etc – Proceedings before the Medical Board of NSW – Suspension order under s 66(1)(a) Medical Practice Act – Appeal to the Medical Tribunal of NSW dismissed – Appeal to the Supreme Court against the decision of the Medical Tribunal of NSW – Whether the Medical Tribunal of NSW made a jurisdictional error or committed an error of law on the face of the record

LEGISLATION CITED:
Health Care Complaints Act 1993
Medical Practice Act 1992
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY:
Procedural and other rulings

CASES CITED:
Saville v Health Care Complaints Commission [2006] NSWCA 298
Taylor v Health Care Complaints Commission (No. 2) [1996] NSWCA 518

TEXTS CITED:


DECISION:
a) Dismiss Dr Gorman’s appeal under s 90 of the Medical Practice Act 1992 against the orders of the Medical Tribunal made on 2 July 2009 as incompetent.
(b) Dismiss Dr Gorman’s summons for s 69 relief.
(c) Order that Dr Gorman pay the Medical Board’s costs of both the appeal and the s 69 summons.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40344/09

MT 40001/09

GILES JA

TOBIAS JA

CAMPBELL JA

Wednesday 3 March 2010

RICHARD FRANCIS GORMAN v MEDICAL BOARD OF NEW SOUTH WALES

Judgment

1 GILES JA: I agree with Tobias JA.

2 TOBIAS JA: Dr Richard Francis Gorman (Dr Gorman) is a duly qualified medical practitioner who has been in practice for over 50 years. As well as practising as a general practitioner he is also a specialist ophthalmologist. Up until 5 December 2008 he had been conducting his practice at a large medical centre at Bankstown as well as in rooms in Marrickville. On that date the Medical Board of New South Wales (the Board) ordered that Dr Gorman be suspended from practising medicine for a period of eight weeks pursuant to the provisions of s 66(1)(a) of the Medical Practice Act 1992 (the Act). From time to time that suspension has been extended (on each occasion for a further eight weeks) by order of the Board pursuant to s 67 of the Act. Currently, Dr Gorman’s registration is suspended until 25 February 2010.

3 By his second Amended Notice of Appeal filed on 11 March 2009, Dr Gorman appealed to the Medical Tribunal (the Tribunal) pursuant to s 95(1)(a) of the Act against the Board’s decision of 5 December 2008 to suspend him from practising medicine.

4 On 2 July 2009, after a nine day hearing, the Tribunal pursuant to s 97(1) of the Act ordered that Dr Gorman’s suspension by the Board on 5 December 2008 be confirmed and that his appeal under s 95 in relation to the Board’s order of 5 December 2008 as well as with respect to three extensions of his suspension under s 67 of the Act (up to 12 July 2009) be dismissed with costs.

Dr Gorman’s appeal against the orders of the Tribunal pursuant to s 90 of the Act is incompetent

5 On 21 July 2009 Dr Gorman filed a Notice of Intention to Appeal the decision of the Tribunal of 2 July 2009 and, on 22 September 2009, he filed a Notice of Appeal containing six grounds of appeal which were particularised in some detail. On 19 October 2009 the Board, as respondent to Dr Gorman’s appeal, filed a Notice of Motion seeking an order that his Notice of Appeal be dismissed pursuant to Rule 51.41 of the Uniform Civil Procedure Rules as incompetent upon the ground that no appeal lay to this Court pursuant to s 90 of the Act from a decision of the Tribunal made pursuant to s 97 of the Act.

6 The Board nevertheless accepted, and so informed Dr Gorman, that although his appeal under s 90 of the Act was incompetent, it was open to him to seek judicial review of the Tribunal’s decision of 2 July 2009 pursuant to s 69 of the Supreme Court Act 1970.

7 Although Dr Gorman maintained that his appeal was competent, he nevertheless requested, and the Board agreed, that in the event that this Court held that his appeal was incompetent, he should pursue an application for judicial review of the Board’s decision in reliance upon the grounds set out in his Notice of Appeal.

8 After hearing argument with respect to the issue of competency of Dr Gorman’s appeal on 10 February last, the Court unanimously determined that Dr Gorman’s appeal was incompetent, indicating that it would give its reasons in due course. Thereupon Dr Gorman requested the Court to accept his Notice of Appeal as an application for judicial review of the Board’s decision – which the Court was prepared to do upon the condition that within seven days he filed and served a formal summons under s 69 seeking an order quashing the Board’s decision of 2 July 2009. Dr Gorman filed a formal summons seeking such an order on 15 February 2010.

9 My reasons for upholding the submission of the Board that Dr Gorman’s appeal was incompetent may be shortly stated.

10 Section 90(1) of the Act relevantly provides as follows:

“A person about whom a complaint is referred to the Tribunal ... may appeal to the Supreme Court against

(a) a decision of the Tribunal with respect to a point of law ...”

11 It is thus a condition precedent for an appeal under s 90(1) that, relevantly, the appellant medical practitioner is a person about whom a complaint has been referred to the Tribunal, for it is against the decision of the Tribunal in relation to that complaint that an appeal lies.

12 This construction is consistent with authority that has considered the rights of appeal conferred by s 90 in similar contexts. In Saville v Health Care Complaints Commission [2006] NSWCA 298, this Court considered whether a medical practitioner had a right of appeal to the Court of Appeal pursuant to s 90 of the Act from proceedings in the Tribunal which arose when a practitioner appealed to the Tribunal under s 87 from a decision of a Committee to impose conditions on his registration. By the time the matter reached this Court, it was common ground between the parties that the appeal under s 90 was incompetent because the proceeding in the Tribunal did not arise as a result of a complaint made about the practitioner which had been referred to the Tribunal.

13 Basten JA (Handley JA agreeing) did however discuss why an appeal under s 90 was incompetent, and in doing so referred at [19] to the reasoning in Taylor v Health Care Complaints Commission (No. 2) [1996] NSWCA 518 where Mahoney P (Clarke JA and Simos AJA agreeing) observed:

“... there is an apparent difference in the legislation between a proceeding ... which comes before the Tribunal by way of the reference of a complaint and one which comes before the Tribunal otherwise, for example by way of appeal pursuant to s 87(1).”

14 Therefore, in order for an appeal to the Supreme Court pursuant to s 90(1) to be competent, the appellant must be a person about whom a complaint has been referred to the Tribunal.

15 In the present case there was no such complaint. Rather, Dr Gorman’s appeal under s 95 of the Act was against the decision of the Board under s 66(1)(a) to suspend him from practising medicine on the ground that it was satisfied that it was appropriate to do so for the protection of the health or safety of any person or persons or that such action was otherwise in the public interest. The Tribunal’s decision against which Dr Gorman now wishes to appeal was, therefore, not one in relation to a complaint about him which had been referred to it.

16 True it is that having made an order under s 66, the Board was required by s 66B(1) to refer the matter to the Health Care Complaints Commission (the Commission) for investigation. Further, by s 66B(2) the matter is to be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned. That deemed complaint, according to the evidence, has been investigated by the Commission, for by letter dated 20 November 2009, the Commission informed Dr Gorman that it had decided to refer the matter to the Director of Proceedings for determination as to whether the complaint should be prosecuted before a disciplinary body pursuant to s 39(1)(a) of the Health Care Complaints Act 1993 (the HCC Act). The relevant disciplinary body in the present case would presumably be the Tribunal. I would construe the reference in s 39(1)(a) of the HCC Act to the prosecution of a complaint as being identical to the referral of the complaint to the Tribunal for determination. This has not yet occurred and s 90 of the Act, therefore, has not been engaged.

17 As I have already noted, the Board has from time to time ordered that the period of suspension imposed by it under s 66(1) upon Dr Gorman on 5 December 2008 be extended pursuant to s 67. It is a condition precedent to the making of an order for extension that the Chairperson or Deputy Chairperson of the Tribunal is satisfied, on the basis of information provided by the Board, that there is no material change in the circumstances that gave rise to the making of the order imposing the suspension in the first place. Importantly, it is also a requirement of s 67(b) that any such order for extension may only be made if “the complaint about the practitioner has not been disposed of”.

18 Given the reference to the Commission of the making by the Board of its order for suspension under s 66(1) and the deeming (as per s 66B(2)) of the matter so referred to be a complaint made to the Commission against the practitioner concerned, it is clear that the Board only had the power to make orders extending Dr Gorman’s suspension upon the basis that the deemed complaint to which I have referred had not been disposed of. It was not, however, suggested by Dr Gorman that the Board did not have the power to order the various extensions of his suspension to which I have referred. The foregoing provides an additional reason in favour of finding that Dr Gorman’s appeal under s 90 was incompetent.

19 In the foregoing circumstances, it follows that Dr Gorman’s appeal pursuant to s 90(1) of the Act against the decision of the Tribunal pursuant to s 97(1) to confirm his period of suspension, was not a decision of the Tribunal in relation to a complaint which had been referred to it. It follows that Dr Gorman’s appeal was incompetent and should be dismissed accordingly.

20 However, in the present context, it is not inappropriate to observe that orders made by the Board for suspension of a medical practitioner from practising medicine and the ordering of one or more eight week extensions of that suspension pursuant to s 67 were clearly intended to operate as an interim measure until what I have referred to as the deemed complaint to the Commission effected by s 66B(2) of the Act, is disposed of. Pursuant to s 19(1) of the HCC Act, on receipt by the Commission of a complaint, it is to be assessed within the time limit referred to in s 22(a).

21 Although it is unnecessary to finally decide the point, there is no reason to believe why a matter deemed a complaint to the Commission by virtue of s 66B(2) should be dealt with by the Commission any differently to the complaints referred to in Part 2 of the HCC Act. In any event, s 7(1)(a) of that Act provides that a complaint may be made under that Act concerning the professional conduct of a health practitioner which, of course, would include a medical practitioner. In the present case it is the professional conduct of Dr Gorman that is in issue.

22 In the present case, what I have referred to as the deemed complaint under s 66B(2) with respect to Dr Gorman was made to the Commission within seven days of 5 December 2008. One assumes that it was then assessed by the Commission and a decision made that it should be investigated. By s 29A(1) of the HCC Act, that investigation was to be conducted as expeditiously as the proper investigation of the complaint permitted. Notwithstanding this provision, I am prepared to assume that that investigation may have been delayed until the decision of the Tribunal concerning Dr Gorman’s suspension was made on 2 July 2009.

23 However, if the Commission’s letter of 20 November 2009 is to be taken as relating to that complaint (and it was not suggested by the Board that it did not), then it has taken from July 2009 to November 2009 for the complaint to be investigated and that investigation finalised - a period of nearly five months.

24 It may be a matter of debate as to whether such an amount of time to investigate the complaint could be regarded as expeditious. Be that as it may, a further period of two months has expired and Dr Gorman is none the wiser as to whether or not the Director of Proceedings proposes to prosecute the complaint by referring it to the Tribunal for determination. There will then be a further delay in the Tribunal hearing the complaint and ultimately making a decision with respect to it. Dr Gorman therefore will not know his fate until later this year; but in the meantime his suspension is continuing with the consequence that he is restrained from practising medicine. Speaking for myself, I do not regard that as at all satisfactory.

25 Both s 29A(1) of the HCC Act and s 48 of the Act require all complaints to be dealt with expeditiously. Prima facie that does not appear to have been the case here, although I accept and acknowledge that the Commission has not been heard on the subject. Nevertheless, it seems an inordinate period of time for a medical practitioner to be suspended from practice where the structure of the Act clearly intends that orders for suspension under s 66, and extensions thereof under s 67, are interim measures only.

26 It is obvious that the longer a medical practitioner is suspended from practice, the greater the harm that that practitioner sustains especially if the complaint to the Commission consequent upon a s 66 order is ultimately dismissed. The loss of a medical practitioner’s practice and his or her ability to earn income therefrom can only increase the longer it takes for the relevant complaint to be disposed of in accordance with the processes of the legislation which, as I have remarked, call for expedition in the investigation and disposal of complaints. It is apparent that the legislature regarded such expedition as important so as to avoid unnecessary professional and financial impacts upon the practitioner concerned.

Dr Gorman’s medical philosophy

27 Since the 1970s Dr Gorman has had a particular interest in spinal manipulation. His thesis is, and has been for many years, that patients who have visionary conditions can be successfully treated by spinal manipulation therapy.

28 In his written submissions to this Court, Dr Gorman agreed that the following statement by the Tribunal of his philosophy encompassed the fundamentals of his beliefs:

“Dr Gorman believes that everyone suffers from ‘cervical syndrome’ or ‘dorsal spine syndrome’ to some extent. The brain controls function. It is fuelled by blood. The vertebral artery provides the principal blood supply. The blood is then reticulated through a complicated vascular system to every part of the brain. It is known that restriction of blood supply can rapidly kill brain cells. It is reasonable to assume that brain cells work best with a good supply of blood and less well with a restricted supply. There may be areas where the cells are receiving so little blood that they are barely alive – they are ‘hibernating’ and not functioning. When they receive an enhanced blood supply they can resume full function.”

29 The Tribunal then continued in the following terms:

“The inhibition of the blood supply is caused by vascular and neurological abnormalities. If the abnormalities are present then the manipulation of the spine can cause a stimulation of the cerebral blood supply and the transmission of relevant messages by way of the cerebro-vertebral nerves. Forceful manipulation can lead to improvement of various functions.

Dr Gorman says that he has manipulated thousands of patients with no relevant complications of any significance and with almost invariably beneficial results.

Dr Gorman believes that almost every medical condition will improve with spinal manipulation. When giving evidence in these proceedings he said: ‘Yes, you can treat someone’s back and their whole function will improve, so their illness – whatever it is – will be better’.

Dr Gorman performs the same spinal manipulation on every patient regardless of the patient’s medical conditions.

He agreed that his view was:

‘that patients with stiff necks, patients with hyper-mobile necks, really dizzy patients, minimally dizzy patients, headache patients, patients without headaches, unhappy patients and happy patients, and patients in whom vertebral artery insufficiency can be provoked, can be expected to respond beneficially to spinal manipulation performed in this generalised way.’

And that this meant:

‘if we add up those different types of categories of patients you identify as in your opinion being likely to respond beneficially to manipulation, that taken together, they really represent every single patient that’s going to walk in the door to a general practice.’ “

30 Dr Gorman’s response to the above statement of his philosophy by the Tribunal was to assert that that statement needed to be viewed in light of the fact that everyone has had some accident in their lives involving their spine. What these accidents mean is that everyone is suspected of occult cerebral detriment as a result of one or more of a series of accidents, which he listed. It is apparent that at the end of the day he did not express any fundamental disagreement with the Board’s description of his medical philosophy.

31 As the Tribunal further observed, Dr Gorman believes that there is a ubiquitous illness that affects every person in the world and that that illness is treatable by spinal manipulation. The illness manifests itself in many physical and psychological conditions caused by impaired blood supply to the brain. That impaired blood flow is improved by vigorous spinal manipulation, ideally under anaesthetic.

The decision of the Tribunal on Dr Gorman’s s 95 appeal

32 Some 29 witnesses were called at the hearing of the Tribunal, which commenced on 11 May 2009 and concluded on 20 May 2009. The parties addressed on 15 June 2009. Of those witnesses, six were called by the Board, four of whom were medical practitioners (Drs. Black, Kennedy, Sutton and Ayscough) and one, Mr Milazzo, was a specialist physiotherapist.

33 Dr Gorman’s witnesses included four medical practitioners (Drs. Ieraci, Orsatti, Reid and Bateman) and a professor of chiropractic, Professor Bonello. Generally speaking, the balance of Dr Gorman’s witnesses were his patients who, understandably, spoke favourably of his treatment of them.

34 After hearing the witnesses the Tribunal determined that within the meaning of s 66 of the Act, the health and safety of the public would be endangered if Dr Gorman were permitted to return to practice as a medical practitioner. In its written submissions to this Court the Board set out a summary of the Tribunal’s findings on which it based that determination. Dr Gorman accepted that this summary was accurate. It is therefore convenient to set it out verbatim. The Tribunal:

“(a) Found that Dr Gorman’s adherence to his particular philosophy and his contempt for what he calls ‘orthodox’ medicine means there is a real risk that he will fail to correctly diagnose a patient’s medical condition.

(b) Found that Dr Gorman has a tendency to diagnose nearly every condition as requiring spinal manipulation and in doing so, relied on Dr Gorman’s own sworn evidence that he:

i. believes that after being given a spinal manipulation, a patient’s illness ‘whatever it is – will be better’;

iii. holds the firm view that there is one ‘ubiquitous illness’ that affects all of mankind;

iii. agreed that ‘every single patient that’s going to walk in the door to a general practice’ is likely to respond beneficially to spinal manipulation;

iv. translates this belief into general practice where he treats the widest array of medical conditions that patients present with by spinal manipulation (including autism, diarrhoea, panic attacks, tonsillitis, developmental disabilities, sore eyes, migraines, depression, forgetfulness, conjunctivitis, fever and chest pain).

(c) Found that a doctor acting in accordance with accepted medical practice would have arrived at different diagnoses (in this respect, it was significant that two doctors called by Dr Gorman as experts in his own case (Dr Orsatti and Dr Bateman) had significant concerns about the medical conditions treated by Dr Gorman with manipulation).

(d) Found that it is likely that there will be cases where Dr Gorman diagnoses patients with overarching ‘ubiquitous illness’ that he believes affects all of mankind and fail to diagnose and treat the patient’s actual condition.

(e) Found that patients who have been incorrectly diagnosed will be unnecessarily exposed to the risks of spinal manipulation.

(f) Found that, if Dr Gorman fails to diagnose a life-threatening condition or a condition requiring immediate treatment, there is a significant risk to the patient.

(g) Found, in relation to the issue of informed consent, that Dr Gorman:

i. has a very limited understanding of what informed consent involves;

iii. fails to give enough information to patients to allow them to give informed consent to spinal manipulation;

iii. is unlikely to give patients the impartial advice or information they need to give informed consent to spinal manipulation and is unlikely to inform patients that his treatment is not the treatment that would be afforded by most (if not all) other doctors.

(h) Noted that the risks of spinal manipulation can be reduced if standards are followed, but found that:

i. Dr Gorman does not adhere to those standards and so the risk to patients is increased;

iii. Dr Gorman follows a method of giving spinal manipulations which ‘falls well below the standard adopted by practitioners who do use spinal manipulations’ (and the Tribunal reached this conclusion, inter alia, relying on the evidence of Dr Gorman’s own expert witness Professor Bonello).

(i) Found that evidence in relation to other medical treatments by Dr Gorman (i.e. other than spinal manipulation) were also below the standard expected of a medical practitioner.”

Dr Gorman’s submissions on his s 69 application

35 Dr Gorman was informed that the permissible issues for determination on his s 69 application for judicial review of the Tribunal’s decision did not permit him to canvass the merits of the Tribunal’s factual findings subject only to any question of Wednesbury unreasonableness, an allegation to which I shall return below. Dr Gorman filed what could only be described as a mass of material apparently based on his belief that he had a right of appeal against the Tribunal’s factual findings as to the validity of and dangers posed by his medical philosophy and the manner in which he practised it. Nevertheless, much of it was argumentative, discursive and irrelevant to the true issues. This notwithstanding, I have made every effort, given that Dr Gorman is unrepresented, to examine his material to see whether there might be some matter which might support the submissions he has made seeking judicial review of the Tribunal’s decision. As will appear, I have been unable to unearth any such matter.

36 Amongst other matters, Dr Gorman provided the Court with an annotated version of the Tribunal’s decision that contained challenges to a number of the Board’s findings and criticism of the witnesses whose evidence the Board had accepted. Unfortunately, Dr Gorman himself had called some of those witnesses: namely, Dr Ieraci, Dr Bateman and Professor Bonello.

37 Given the nature of judicial review, practically all of Dr Gorman’s submissions were irrelevant to the issues which it was permissible for him to raise upon a s 69 summons, essentially, that the Tribunal made a jurisdictional error or committed an error of law on the face of the record, being its reasons for decision.

38 In the circumstances, the submissions of Dr Gorman which were relevant to a judicial review application may be summarised as follows:

(a) The Tribunal was biased in the sense that it had a predisposition to accepting the correctness of conventional medicine. In particular, the two medical members of the Tribunal practised only orthodox medicine and, therefore, would have had a predisposition to reject Dr Gorman’s medical philosophy as having any validity. The Tribunal members had, in effect, closed their mind to the validity and efficacy of his form of treatment of his patients. The Tribunal blindly accepted the views of the medical witnesses who rejected Dr Gorman’s form of treatment as being antithetical to the practice of conventional medicine, even though those witnesses did not provide treatment in the nature of that which Dr Gorman espoused as being the only proper approach to the conditions which he treated by spinal manipulation;

(b) The Tribunal erred in accepting the evidence of the medical witnesses rather than that of Dr Gorman, who was more competent and more enlightened than those who expressed views contrary to his own;

(c) In finding that Dr Gorman’s method of treatment was dangerous, or at least potentially dangerous, the Tribunal erred, as its members had neither the expertise nor knowledge to make such a finding. Further, neither the Tribunal nor the medical witnesses upon whom it relied in making its findings had a competent understanding of basic physiological principles;

(d) In any event, there was no evidence that in performing spinal manipulation upon his patients Dr Gorman had ever actually hurt any of them in the sense that he had injured their vertebrae. Accordingly, the Tribunal’s findings were based purely on conjecture given that Dr Gorman had practised spinal manipulation for some 20 years without complaint from any of his patients. While his method of treatment was unorthodox (by the standards of the Tribunal and the witnesses as accepted), it was nonetheless valid, effective, cheap, efficient and successful;

(e) The Tribunal failed to take into account three relevant considerations:

(i) The fact that neither the Royal College of Ophthalmologists nor any other scientific organisation was prepared to carry out research in order to establish the validity of Dr Gorman’s opinion that spinal manipulation improved blood flow to the brain and therefore provided benefits to patients with vision loss;

(ii) The financial consequences of Dr Gorman’s continued suspension and its impact upon those in the community seeking his medical services;

(iii) The substantial public savings as a result of Dr Gorman’s treatment methods being adopted instead of the conventional use of expensive and sometimes risky treatment using drugs and blood tests;

(f) There was procedural unfairness in three respects:

(i) The Tribunal refused to allow Dr Gorman to ask certain questions in cross-examination of Dr Kennedy in relation to a patient that Dr Gorman claimed he had successfully cured of glaucoma;

(ii) The Tribunal refused to hear evidence from Mr Stafford Hamilton. Mr Hamilton was a financier to the medical and accounting profession who had entered into some form of financial transaction with Dr Gorman that was contingent upon a day centre being built in which Dr Gorman intended to practise his particular form of medicine;

(iii) The Tribunal failed to allow Dr Gorman to call all the witnesses he wanted and in particular Associate Professor Fearnside and Professor Procopis;

(g) The decision of the Tribunal is not one which any reasonably competent Tribunal would make: on the contrary, it was irrational and, therefore, Wednesbury unreasonable.

Was there any relevant error on the Tribunal’s part?

39 It is apparent from a reading of the Tribunal’s reasons that it made a number of factual findings all of which, when taken in combination, clearly justified the Tribunal confirming the suspension of Dr Gorman from practising medicine which had been ordered by the Board. Dr Gorman’s basic complaint is that the Tribunal was too ready to accept that what he referred to as the “gold standard” was the orthodox or conventional practice of medicine which, he asserted, was seriously deficient if only because it failed to include and approve a valid form of treatment for most illnesses and, in particular, those involving impaired vision. According to his evidence, he had carried out this treatment for some 20 years without causing any relevant injury to any of his patients. This fact demonstrated its validity and efficacy.

40 In these circumstances, Dr Gorman submitted that it was irrational for the Tribunal to find that he was a danger to the public in the sense (as there was no specific finding in those terms) that his suspension was necessary for the protection of the health and safety of the public or was otherwise in the public interest.

41 As I have indicated, the Tribunal accepted the evidence of the medical practitioners who were called both by the Board and by Dr Gorman. In essence that evidence, when directed to a list of patients who were treated by Dr Gorman and referred to in the Tribunal’s reasons, was that although Dr Gorman diagnosed a cervical syndrome and treated the patients with spinal manipulation, he did so in circumstances where a competent medical practitioner, acting in accordance with accepted medical practice, would have arrived at a different diagnosis which would have been treated in accordance with more conventional norms.

42 Although Dr Gorman challenged findings such as these, the fact is that the medical evidence supported those findings. There was no element of conjecture on the part of the Tribunal.

43 The problem that Dr Gorman faced was that he called a number of medical witnesses who gave evidence that was contrary to the thesis he was advocating. Thus, for instance, he called Dr Ieraci, the senior member of the staff of the Emergency Department at Bankstown Hospital, being the closest hospital to Dr Gorman’s practice. According to the transcript Dr Gorman regarded her as a hostile witness notwithstanding that he voluntarily called her as a witness in his case.

44 Dr Gorman criticised the Tribunal’s acceptance of Dr Ieraci’s evidence upon the basis that she was in fact a member of the Board. This was so, but it was common ground that Dr Ieraci was not in any way, at any time, involved directly or indirectly with the Board’s decisions under s 66 and s 67 that related to Dr Gorman.

45 Dr Gorman called Dr Orsatti, who was a general practitioner in the same clinic in which Dr Gorman practised. His evidence was antipathetic to Dr Gorman’s treatment methods by way of spinal manipulation. A Dr Bateman owned the clinic in which Dr Gorman was engaged – Dr Gorman also called him as a witness. The Tribunal found that Dr Bateman agreed that treating a child with tonsillitis with spinal manipulation was outside accepted general practice.

46 The treatment of the patients referred to in the evidence and the explanations given by Dr Gorman were, according to the Tribunal, consistent with the proposition that Dr Gorman approached general practice presuming that all patients had the same over-arching condition. Thus, Drs Orsatti and Bateman were concerned that Dr Gorman’s approach to diagnosis and treatment was not accepted medical practice. In particular, Dr Bateman had said that it would mean that there was an “increased chance” that Dr Gorman would make a misdiagnosis, as a consequence of which the patient’s real condition would not be properly treated.

47 As I have already observed, Dr Gorman called Professor Bonello, a chiropractor, to support his case. Professor Bonello, as well as Dr Ayscough and the specialist physiotherapist, Mr Milazzo, identified three areas of concern with respect to Dr Gorman’s treatment, namely, his failure to take a proper history and conduct a proper examination; his failure to screen for risk; and the methodology he adopted in manipulating the patient’s spine.

48 The Tribunal summarised the issue of risk created by Dr Gorman’s methods in the following passage of its reasons:

“Dr Gorman does not agree with any of these principles. He sees spinal manipulation as a cure for visual disturbance, dizziness and nausea. Most of the cardinal signs commonly accepted as contra-indicating spinal manipulation in the cervical spine by doctors, physiotherapists and chiropractors are the signs Dr Gorman uses as indications for manipulation. His manipulations are based on the presence of cerebrovascular insufficiency while doctors, physiotherapists and chiropractors are trained to identify cerebrovascular insufficiency as a contraindication for cervical manipulation. Dr Gorman’s practice leads to an increased risk of injury to patients.”

49 Dr Gorman’s answer to these findings was, in essence, that he was right and all the medical witnesses were wrong. Such an assertion does not, in my view, establish any relevant bias or lack of good faith on the part of the Tribunal that would support an application for judicial review.

50 Even if the Tribunal, as Dr Gorman submitted, adhered to the conventional standards as to how a medical practitioner should conduct his medical practice and rejected anything that did not adhere to that standard, that does not, in my view, constitute any relevant error on the Tribunal’s part. The simple fact is that the Tribunal was bound to consider the medical evidence that was contrary to Dr Gorman’s interests and it was entitled to accept that evidence and reject his. This does not indicate any relevant bias or lack of good faith on the Tribunal’s part. Nor does it evidence any irrationality or Wednesbury unreasonableness with respect to the Tribunal’s findings which were clearly open to it on the evidence.

51 Dr Gorman’s challenge to the composition of the Tribunal as including two medical practitioners who had a predisposition to accept the correctness of conventional medicine does not assist his case. Pursuant to s 147(3)(b) of the Act, when hearing an appeal the Tribunal is to consist of two registered medical practitioners having such qualifications as may be prescribed, appointed by the Board. There was no, and could not be any, suggestion that the two medical practitioners who constituted the Tribunal in the present case were not properly qualified to hear Dr Gorman’s appeal. There is nothing in the Tribunal’s reasons to indicate that those members of the Tribunal, or for that matter the Tribunal as a whole, did any more than determine Dr Gorman’s appeal upon the basis of the evidence it accepted.

52 I have already referred to Dr Gorman’s submission that the Tribunal refused to hear evidence concerning a glaucoma patient who, he claimed, was successfully cured. The Board called Dr John Kennedy, a specialist ophthalmologist, who was cross-examined by Dr Gorman (at Black 1/110-113). Dr Gorman attempted to persuade Dr Kennedy to accept that he had treated a patient with glaucoma with spinal manipulation as a consequence of which the patient’s vision had improved. At the top of Black 111 he asked a question which was rejected by the Deputy Chairperson and rightly so.

53 As appears from Black 112-113, Dr Kennedy was doubtful whether the patient in question even had glaucoma. Relevantly, Dr Kennedy responded to a question by Dr Gorman in the following terms:

“I mean, even assuming what you’re saying, the blood supply of the optic nerve head comes exclusively from the carotid arteries and not the vertebral, and therefore even what you’re saying about manipulating the spine to facilitate the vertebral artery perfusion would have no effect on the carotid, so I’m not quite certain where you’re coming from in this regard.”

54 Dr Gorman then put to Dr Kennedy that after a period of manipulations over some 100 days the patient in question “stayed good for quite a long time” and that this demonstrated the validity of his treatment. Dr Kennedy simply responded, “one case does not a proof make”. It was then put to Dr Kennedy by Dr Gorman that there would be a huge saving in taxpayers’ funds if his treatment was used to make people with glaucoma better, to which Dr Kennedy responded:

“I think many people have thought about it and thought about it in great detail, and no one that I am aware of accepts your philosophy of practice.”

The Deputy Chairperson then rejected the question “Is that a problem, do you think” ?

Dr Gorman was then asked “Is there any other topic?” He said, “No, I just want to do the other eye ...”. It is not clear that the questions put to Dr Kennedy were related to one eye only, but in any event the Deputy Chairperson replied, “I don’t think there’s any need. I think one eye is enough.” Dr Gorman protested that his livelihood was at stake, and the Deputy Chairperson said that Dr Kennedy had explained that anecdotal evidence about one patient was not in his opinion medical proof, “So adding a second eye to the first eye isn’t going to change, I assume that evidence, so I don’t see any point in doing another eye”. Dr Gorman then asked some more questions covering the treatment of glaucoma.

55 The foregoing illustrates that the Tribunal did not refuse to hear material evidence about the glaucoma patient whom Dr Gorman alleged he had treated with success. Dr Kennedy’s evidence was simply that he did not accept that if the patient truly had glaucoma, spinal manipulation would have improved the patient’s vision. That evidence the Tribunal was entitled to accept. In so doing, it did not exhibit any relevant bias or lack of good faith. The Tribunal did no more than any other tribunal of fact does when accepting the evidence of one witness over that of another.

56 The Tribunal noted that Dr Gorman conceded that there was no reliable study proving his philosophy. However, that was one of his complaints, as he believed that there was a conspiracy against him that extended to the authorities deliberately failing to take steps to prove his theory even though he had informed them about its reliability. His submission to this Court, as I have indicated, was that the Tribunal erred in failing to take into account that no such research had been conducted. However, it was the fact that there was no research and the Tribunal, obviously, had no say as to whether any such research should be conducted. However, they noted his concern and thus took it into account. There is no substance in Dr Gorman’s complaint in this regard.

57 Dr Gorman wished to call Associate Professor Fearnside and Professor Procopis in his case. He applied to the Deputy Chairperson for a summons to be issued to each of those medical practitioners to attend and give evidence. He had apparently written to each of them requesting that they give evidence but had received no reply. Furthermore, he had no idea as to whether they would support him or not. As appears from Black 1/27-28, Dr Gorman ultimately appreciated that subpoenaing those practitioners without having any idea as to what they would say would not be of assistance to him. He therefore withdrew his application for a summons requiring that each of them give evidence, indicating to the Deputy Chairperson that he would approach those practitioners directly for the purpose of ascertaining their opinion as to his form of treatment.

58 In the light of Dr Gorman’s proposal to approach those witnesses the Deputy Chairperson set aside the application for a summons that those persons attend to give evidence. This occurred some three weeks before the hearing commenced and there was no further reference to Professors Fearnside and Procopis during the course of the substantive hearing. Accordingly, there is no basis for Dr Gorman’s complaint that he was denied the ability to call relevant witnesses in his case.

59 With respect to Dr Gorman’s submission that the Tribunal refused to permit him to call financial evidence from Mr Hamilton, in my opinion there was no error on the part of the Deputy Chairperson in rejecting that evidence as irrelevant to the inquiry which the Tribunal was required to undertake. It might well be that in a borderline case it would be relevant for the Tribunal to take into account when determining whether to confirm an order for suspension under s 66 that the making of such an order would cause financial detriment to the medical practitioner where the circumstances were such that that outweighed any real risk to the health and safety of members of the public.

60 But that was not the basis on which Dr Gorman sought to call the evidence. He explained that it went to a “community penalty, not financial penalty”: not financial detriment to him, but that the community would suffer if, because he was unable to practice, he was unable to take advantage of the financial assistance Mr Hamilton was prepared to provide so that he could open a day care centre. On this basis, the evidence of Mr Hamilton was not relevant.

61 Accordingly, no error has been demonstrated on the Deputy Chairperson’s part in rejecting the attempt by Dr Gorman to elicit evidence from Mr Hamilton as to the financial transaction between himself and Dr Gorman.

62 Finally, Dr Gorman submitted that the Tribunal failed to take into account a relevant consideration, namely, the substantial public savings which would result from the wholesale adoption of Dr Gorman’s method of treatment compared to the costs associated with the conventional use of expensive and sometimes risky drugs and blood tests. However, the Tribunal was made aware by Dr Gorman of his assertions with respect to what he claimed were the benefits of his treatment over that of conventional medicine. But those benefits were only real if the Tribunal had accepted the medical reliability of his method of treatment. It did not. The benefits Dr Gorman espoused therefore became irrelevant.

63 In summary, in my opinion the submissions upon which Dr Gorman relies to establish some form of bias or lack of good faith on the part of the Tribunal should be rejected. Although the Tribunal did not in terms make a finding that the treatment by spinal manipulation that he advocated was necessarily in all cases dangerous, it was open to it on the medical evidence, which it accepted, to find that Dr Gorman’s methodology was such as to make it appropriate for the protection of the health and safety of the public to suspend him from practising medicine.

64 That finding was in turn based on the Tribunal’s finding that it was satisfied on the evidence that some patients were unnecessarily exposed to the risk (albeit small) of spinal manipulation; that the spinal manipulation technique used by Dr Gorman did not involve the taking of a proper history and the conducting of a proper examination; that his practice of medicine would lead to an increased risk of injury to patients and that his type of non-specific forceful manipulation of the cervical spine represented a significant departure from the standard of care adopted by practitioners who do use spinal manipulation (such as physiotherapists and chiropractors) to treat various conditions where that form of treatment is indicated.

65 To the foregoing can be added the Tribunal’s findings with respect to Dr Gorman’s understanding or, more accurately, lack of understanding of informed consent and its implicit rejection of Dr Gorman’s challenge to conventional or orthodox medicine and to its practitioners being incompetent compared to himself. None of those findings reveal any relevant error which would support an application under s 69 of the Supreme Court Act to quash the Tribunal’s decision.

Conclusion

66 For the foregoing reasons, in my opinion the various challenges by Dr Gorman to the legality of the Tribunal’s decision should be rejected. I would therefore propose the following orders:

(a) Dismiss Dr Gorman’s appeal under s 90 of the Medical Practice Act 1992 against the orders of the Medical Tribunal made on 2 July 2009 as incompetent.

(b) Dismiss Dr Gorman’s summons for s 69 relief.

(c) Order that Dr Gorman pay the Medical Board’s costs of both the appeal and the s 69 summons.

67 CAMPBELL JA: I agree with Tobias JA. I particularly wish to associate myself with the remarks in [24] of Tobias JA’s judgment. Significant delay in deciding questions that affect a person’s ability to earn his or her living is to be deplored.

**********

AMENDMENTS:


03/03/2010 - Incorrect counsel listed - Paragraph(s) Coversheet


LAST UPDATED:
3 March 2010