Medical Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Rolleston [2013] NSWMT 12
• Hearing dates: 6 May 2013
• Decision date: 17 May 2013
• Before: Lakatos SC DCJ; Dr M Cox; Dr M-A Friend; Mr R Smith

Decision

Respondent's registration cancelled - Respondent is precluded from reapplying for registration for four years - Respondent is prohibited from supplying health services

• Catchwords: MEDICAL PRACTIONER - serious criminal conduct and convictions - indecent assault on teenage male patients - professional misconduct - suitability to hold registration - failure to comply with chaperone conditions - de-registration
• Legislation Cited: Health Practitioner Regulation National law (NSW) No 86A; Crimes Act 1900 (NSW); Medical Practice Act 1992 (repealed); Civil Procedure Act 2005
• Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; HCCC v Litchfield (1991) 41 NSWLR 630; Richter v. Walton Court of Appeal (15 July 1993, unreported); General Medical Council v Spackman [1943] AC 627; Oshlack v. Richmond City Council [1998] 193 CLR 72, [1998] HCA 11; NSW Medical Board v Dinakar [2009] NSWMT 8; Ohn v Walton (1995) 36 NSWLR 77; Latoudis v Casey (1990) 170 CLR 534; HCCC v Greenwood [2011] NSWNMT 13; HCCC v Gower [2011] NSWNMT 17; HCCC v Rahman [2013] NSWMT 6
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Dr John Philip Rolleston (Respondent)
• Representation: Counsel: Ms R Mathur for HCCC; Mr M Ainsworth for Respondent; Solicitors: Health Care Complaints Commission (Applicant)
• File Number(s): 40028/12
• Publication restriction: Restriction on publication of any material that could identify the patients

Judgment

1 Dr John Philip Rolleston (the respondent) is a 75 year old medical practitioner, who commenced to practise medicine in 1968. By an Amended Complaint, the Health Care Complaints Commission (the HCCC), alleges that the respondent has been convicted of criminal offences (Complaint One); that the respondent has been guilty of unsatisfactory professional conduct in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine (Complaint Two); that the respondent has been guilty of unsatisfactory professional conduct in that he contravened conditions to which his registration was subject (Complaint Three); that the respondent is guilty of professional misconduct within the terms of section 139E of the Health Practitioner Regulation National Law (the National Law) (Complaint Four) and that the respondent is not a suitable person to hold registration in the medical profession (Complaint Five).

2 The offences the subject of the criminal convictions, and the further complaints made by a number of patients each alleged inappropriate contact of a sexual nature, involving the respondent masturbating the teenage boys, or alternatively, requiring them to masturbate themselves in his presence, usually until they ejaculated. A number of the complaints involved the assertion that the respondent fondled the testicles of the young men, or moved his fingers rapidly in and out of their anus at the same time as masturbating them. All these events occurred in the context of a medical consultation, where the boys presented with symptoms generally of an unrelated nature, such as asthma or acne.

3 The respondent admits each of the five complaints (as particularised) and concedes that his conduct calls into question his suitability to hold registration in the medical profession. Specifically, the respondent adheres to his earlier stated intention not to seek renewal of his registration when it fell due.

Background

4 In 1958, the respondent graduated Bachelor of Pharmacy from the University of Sydney. In 1967, he graduated Bachelor of Medicine Bachelor of Surgery from University of Sydney. After completing an internship, the respondent was employed at the Sutherland Hospital and thereafter at Mona Vale Hospital as a Resident Medical Officer.

5 In 1969, the respondent commenced to practise as a general practitioner at St Ives, Sydney. He became a partner in a firm of general practitioners, and continued at the practice until late 1979. Thereafter, the respondent left that practice to commence as the Medical Director of the Accident and Emergency Department at the Royal North Shore Hospital, where he remained until mid-1983. Between 1983 and early 1987, the respondent was in general practice at Mt Druitt, Sydney.

6 In 1975, the respondent was convicted of nine offences pertaining to the pharmaceutical provisions of the National Health Act, in respect of offences which occurred in 1971 and 1972. No action was taken at that time in regard to his medical registration.

7 In April 1986, the respondent was convicted in the New South Wales District Court of 12 counts of issuing false documents, which were capable of being used in relation to an application for a payment under the Health Insurance Act and fined a total of $17,000 and sentenced to one year term of imprisonment, but was released on a five-year good behaviour bond. On 27 February 1987, the respondent was found guilty of professional misconduct (consequent upon his convictions), and his name was removed from the Register of Medical Practitioners, following a hearing before the New South Wales Medical Tribunal.

8 In October 1990, the respondent successfully applied to have his name restored to the Register of Medical Practitioners, on a conditional basis, i.e. he could only practice within the hospital system, and did not enjoy the right of private practice for a period of two years.

9 Between October 1990 and February 1993, the respondent was employed in various hospitals in Sydney and thereafter in Broken Hill. In February 1993, the respondent's conditional registration was removed. Accordingly, he became entitled to work as a general practitioner in private practice.

10 Between 1993 and early 1997, the respondent was the Director of Medical Services at the Broken Hill Hospital. Between 1997 and 25 March 2010, the respondent established and worked as a principal in the Broken Hill Medical Centre.

11 On 2 April 2008, the respondent advised the Board on his annual renewal form that in July 2007, he had been convicted of a charge of driving under the influence of alcohol. He was fined and disqualified from driving for three months. In 2004, the respondent had been stopped, but not charged for a low range PCA offence. In 2008, the respondent was assessed in relation to a drinking problem and found not to be suffering from an impairment.

12 In June 2009, the practitioner appeared at an Inquiry convened by the Medical Board of New South Wales in accordance with section 66 of the Medical Practice Act 1992 (repealed). The proceedings were convened in relation to a number of complaints alleging that the respondent had assaulted adolescent boys during the 1970s. The allegations related to the period in which the respondent was working as a general practitioner in St Ives and in his early years working in the Emergency Department at Royal North Shore Hospital.

13 The first complaint was received in 1998, and there were a number of investigations since that time by the HCCC, and the New South Wales Medical Board. The delegates to the Inquiry decided on 25 June 2009, that pending a full investigation of the allegations, it was appropriate to impose conditions on the respondent's registration, in order to protect the health and safety of the public. Those conditions prohibited the respondent from providing any medical services at all, to patients between the ages of 11 and 18 years inclusive. The conditions further required that a chaperone be present at all times during his provision of medical services to any patient between the ages of 0 and 10 years. There were additional conditions affecting the way in which the two principal practice restrictions were to function.

14 The respondent's response to the allegations considered by the Inquiry was "a blanket denial that he has not ever molested any patient at St Ives or elsewhere". The complainants were Patients E, G and D. The delegates concluded, correctly in our opinion, that whilst the events were alleged to have occurred in the 1970s, this in itself did not mean that the health and safety of persons were not now potentially at risk, or that action was not now otherwise required in the public interest.

15 On 3 July 2009, the respondent was arrested and charged with 11 counts of indecent assault against four males between 11 and 15 years of age in the 1970s. In September 2009, the HCCC notified the Board of allegations of indecent assault made by a number of males of similar age also in the 1970s. The complainants in the latter allegations were Patients K, C, J, B, A, I and H.

16 In January 2010, the Board wrote to the respondent in relation to a significant number of discrepancies between the entries recorded in his monthly chaperone logs with data supplied by Medicare Australia regarding medical services he rendered to patients aged 18 years or younger. The information suggested that he had consulted with four patients aged between 11 and 18 years, which raised concern about a breach of the condition relating to age restrictions on patients (Practice Condition 2). The data also suggested that he had consulted with 22 patients aged 10 years or younger.

17 The respondent accepted that he was in breach of his conditions. However, he expressed complete surprise as he had thought that he had already put in place the "necessary controls". The respondent however, stated that all patients had been properly chaperoned and that the only errors were in the paperwork. He was unable to explain why there had been so many errors in the relevant period. Furthermore, the respondent asserted that in some cases, the patient was just short of 19 years of age, in other cases, the patient had been incorrectly billed as his consultation rather than that of a colleague and these had been honest mistakes.

18 The delegates stated that "meticulous compliance with such conditions was fundamental, as it is the only means by which the Board can satisfy itself that the conditions are serving to protect the health and safety of the public". They considered that his behaviour amounted to a flagrant disregard of the intent of the conditions on his registration, as well as the specific reporting requirements.

19 The Inquiry was told that in early July 2009, the respondent was arrested and charged in relation to 11 indecent assaults. The delegates observed that "the charges are of an extremely serious nature and relate directly to professional standards and to the public's expectation of medical professionals who hold positions of particular trust". Given all these matters, the delegates considered that the suspension for a period of eight weeks was appropriate and necessary, being satisfied that it was appropriate to do so for the protection of the health and safety of the public, alternatively that the action was otherwise in the public interest.

Complaints

20 On 24 June 2011 after a trial in the District Court, the respondent was sentenced by Flannery DCJ in respect of 10 counts of indecent assault upon a male pursuant to section 81 of the Crimes Act 1900 (NSW). Also dealt with in those proceedings, was a further indictment alleging seven counts of indecent assault of a male, to which the respondent pleaded guilty. Two of the seven counts were placed on a Form 1. The maximum penalty for an offence under section 81 was five years imprisonment.

21 In the sentencing remarks, Flannery DCJ noted that the respondent or one of his colleagues in the practice at St Ives, was the family doctor for 10 of the 12 victims. The other two victims consulted the respondent when he was working at the Royal North Shore Hospital. The offences occurred in the course of consultations between 31 December 1969 and 1 January 1982, at the respondent's surgery, the hospital, and during house calls. At the time of the offences, the victims were all teenage boys aged between 12 to 16 years of age.

22 In relation to these offences, her Honour imposed an aggregate sentence of four years imprisonment with a non-parole period of 18 months, the latter to expire on 23 December 2012.

23 On 27 March 2012, the respondent was charged with a further four offences of indecent assault upon a male (the victims being Patients Q, R, S and T), and after entering pleas of guilty, was sentenced by Flannery DCJ on 9 November 2012. There were two additional matters placed on a Form One, which her Honour took into account. Her Honour imposed an aggregate sentence of 14 months to expire on 23 March 2013. These were the convictions relied upon to support Complaint One, and as we have earlier noted, the respondent admitted this complaint. We are comfortably satisfied that this complaint has been established to the requisite degree cf Briginshaw v Briginshaw (1938) 60 CLR 336.

24 Complaint Two alleges that the respondent is guilty of unsatisfactory professional conduct in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. The Complaint is particularised in that between 1 January 1969 and 1 January 1982, the respondent indecently assaulted Patients A to T during consultations by those patients with the respondent for medical services and which were conducted at the respondent's surgery, in hospital or at the patients' homes during house calls. The respondent admitted this complaint. We are comfortably satisfied that this complaint has been established.

25 Complaint Three alleges that the respondent has been guilty of unsatisfactory professional conduct in that he has contravened conditions to which his registration was subject. As has been noted above, on 23 June 2009, the NSW Medical Board imposed Practice Conditions upon the respondent's registration, which prohibited the respondent providing medical services to any patient aged between 11 and 18 years inclusive (Practice Condition 2). It was also a requirement that a third person "the chaperone" be present at all times during any provision of medical services relating to patients aged from 0 to 10 years (Practice Condition 3). Finally, the respondent was required to keep a chaperone record, requiring the contemporaneous signatures of each chaperone (Practice Condition 4).

26 The complaint alleges that between mid-August 2009 and 30 October 2009, the respondent contravened Practice Condition 2 in that he provided medical services to Patients M, N and O, who were then 18 years of age. Further, the complaint alleges that between July and October 2009, the respondent contravened Practice Condition 4 in that he failed to keep a chaperone record as required, for 22 patients between the ages of 0 and 10 to whom he provided medical services in that period. The respondent admitted this complaint. We are comfortably satisfied that this complaint has been established and endorse the observations of the delegates in the section 66 Inquiry at paragraph [19] above.

27 Complaint Four alleges that the respondent is guilty of professional misconduct in that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration or alternatively that he engaged in more than one instance of unsatisfactory professional conduct, of sufficient seriousness to warrant a similar result. The respondent admitted that he was guilty of professional misconduct. We are comfortably satisfied that this complaint has been established.

28 Complaint Five alleges that the respondent is not a suitable person to hold registration in the medical profession. The particulars to this complaint set out the underlying conduct, which supports the offences in respect of which the respondent had been convicted and sentenced. The Tribunal does not propose to set out in considerable detail each of the incidents involving the patients with whom the respondent interfered. In taking this course of action, we do not wish it to be taken that the effect of the respondent's conduct upon the individual patients was insignificant or did not cause long-lasting prejudicial effects upon them.

29 These matters were more fully dealt with by her Honour Flannery DCJ in the judgments her Honour gave in 2011 and 2012. In her remarks on 24 June 2011, her Honour stated:

Eight of the 12 victims prepared Victim Impact Statements. ... No one could fail to be moved by their content. The statements describe a loss of trust in authority figures, depression and anxiety, achieving less in life than might have been expected, alcohol and drug dependence and the loss of meaningful relationships.

Furthermore, her Honour noted in her remarks on 9 November 2012 that two of the victims with whom she was dealing, "continue to be affected by the offending as a result of the confusion, anger and embarrassment caused".

Given the number of complaints and the similarity in the circumstances in which they occurred, the facts disclose a depressing similarity about the modus operandi adopted by the respondent in interfering with teenage boys, for what some of the evidence suggests, was for his own sexual gratification.

30 Patient A was aged 13 to 15 years when the assaults occurred. Between 31 December 1974 and 1 January 1977, he visited the respondent at his surgery for medical attention. The respondent asked Patient A to lie down and then removed Patient A's pants. The respondent masturbated Patient A by stroking his penis until he ejaculated. Patient A felt awkward and embarrassed, but because he trusted the respondent, he thought that this was part of the treatment. Patient A did not say anything at the time, because he was " young and naive, but most of all I had placed my trust in him".

31 Patient B was aged 14 to 15 years and was indecently assaulted by the respondent between 31 December 1975 and 1 January 1977. The assault occurred in the course of a consultation at the respondent's surgery. The respondent told Patient B that he required a semen sample, and when he was unable to produce the same, the respondent squeezed clear gel onto the patient's penis and manipulated it with his hand. The respondent then squeezed the patient's penis and applied to a stick to collect what he said was a sample.

32 Patient C was aged 12 to 15 years. On two occasions between December 1975 and January 1978, Patient C visited the respondent at his surgery in relation to acne and asthma problems. Under the pretext of checking his hormone levels, the respondent masturbated Patient C to the point of ejaculation. On one occasion, the respondent asked the patient whether he wished his girlfriend was doing "this" (masturbating Patient C). He then purported to take a sample of the semen. Patient C stated that in later years, he commenced getting angry and emotional about what had occurred.

33 Patient D was aged approximately 15 years. Between December 1977 and June 1979, Patient D was indecently assaulted on four occasions by the respondent at his surgery. On each occasion, the respondent masturbated Patient D to the point of ejaculation. On two further occasions between April 1979 and January 1982, the respondent, indecently assaulted Patient D in a similar manner at Royal North Shore Hospital. Subsequent to these assaults, Patient D noted that his school grades began to drop, and the repercussions of the incidents continue to affect him until the present day.

34 Patient E was aged 14 to 15 years. On 24 July 1979, he was taken to the Emergency Department of the Royal North Shore Hospital following an accident in the school playground. The respondent examined Patient E stating he wanted to check if there was any blood in his anus or semen. The respondent stroked the patient's penis and inserted a finger of his gloved hand into the patient's anus and moved vigorously around for approximately 2 minutes. The respondent withdrew his finger and invited the patient to masturbate himself. Thereafter the respondent again placed his finger in the patient's anus whilst the patient was masturbating himself and invited the patient to tell him when he was "going to come". Patient E stated that he was overwhelmed and confused, felt very upset, and was bewildered as to what exactly happened. In 1997, Patient E first disclosed the assault to his general practitioner and commenced to have frequent anxiety attacks, resulting in his consulting a psychiatrist and a psychologist for treatment.

35 Patient F was aged 12 to 13 years. Between December 1973 and January 1977, the respondent indecently assaulted the patient on three occasions by masturbating Patient F to the point of ejaculation. These events occurred, on one occasion at the patient's home during a house call, and on the other two occasions at the respondent's surgery. Patient F stated that on at least one occasion, he felt the respondent's erect penis proximate to his right arm. Patient F did not disclose these matters at the time, because he was ashamed, and thought that somehow he encouraged the behaviour, even though he felt embarrassed and confused at the time.

36 Patient G was aged approximately 12 years and 14 years respectively. On two occasions between December 1973 and 1 January 1976, the patient consulted the respondent on the first occasion at his surgery in relation to the flu, and on the second occasion during a house call. During these consultations, the respondent indecently assaulted the patient by masturbating him to the point of ejaculation. As a result of these events, Patient G has consulted a number of psychiatrists and attended at various mental health departments, stating that it has taken many years for him to gain trust in doctors.

37 Patient H was approximately 16 years of age. Between December 1973 and January 1977, the patient attended upon the respondent at the Royal North Shore Hospital in relation to gastrointestinal problems. In the course of the purported examination, the respondent applied lubricant to the patient's penis and masturbated him for several minutes. At the time that these events occurred, the patient thought that there was medical justification for the procedure. It was only when he was in his mid-20s, that Patient H realised he had been abused.

38 Patient I was aged approximately 13 to 14 years. On five occasions between February 1975 and January 1976, the patient attended at the respondent's surgery for medical attention in relation to bronchitis and other issues. On each occasion, the respondent masturbated Patient I and on at least one occasion, this caused him significant discomfort. On a further occasion, the respondent commenced to play with the patient's testicles for a number of minutes.

39 Patient J was aged between 14 and 16 years. On two occasions between December 1973 and January 1977, the patient attended at the respondent's surgery for medical attention. On both occasions, the respondent masturbated the patient until he ejaculated, for the stated purpose of providing a semen sample. Patient J did not disclose the abuse because he thought that it involved proper medical procedures. He said that in later years, he became angry at the respondent, because the latter had abused a position of trust and took advantage of him as a young person.

40 Patient K was aged approximately 16 years. On one occasion, between December 1969 and January 1971, the patient attended at the respondent's surgery for medical attention in relation to glandular fever. The respondent told the patient that he would have to collect a full range of samples including blood and semen samples. The patient was told that a semen sample was required, and the respondent commenced to masturbate him. Patient K indicated that he preferred to undertake the procedure himself, but when he was unable to ejaculate, the respondent applied a black rubber ring and forced it over the patient's erect penis causing him pain. Ignoring Patient K's pleas for him to stop, the respondent masturbated the patient in a furious manner until he ejaculated causing the patient pain. As a result of the incident, Patient K's penis had a deep rounded groove around the shaft, where the rubber ring had been, and a large blue coloured bubble like a blister on head of the penis, which remained very sore and swollen for some days. Patient K stated that at the time of the assault, he was fragile, emotionally affected, ashamed and guilty. He lost his confidence and developed low self-esteem.

41 Patient L was aged approximately 15 years. On three occasions between December 1973 and January 1977, the patient attended at the respondent's surgery for medical attention in relation to minor ailments and a common cold. The respondent indecently assaulted the patient by masturbating him on each occasion. The patient did not disclose the abuse at the time, although he realised it was wrong.

42 Patient Q was approximately 16 years of age. On one occasion, between January 1969 and December 1970, the patient attended at the respondent's surgery for medical attention. The respondent on two occasions masturbated the patient. He produced a "girlie" magazine, but Patient Q could not ejaculate. The patient did not report the abuse at the time, although he felt guilty and embarrassed about the incident.

43 Patient R aged between 16 and 18 years of age. On two occasions between January 1970 and December 1972, the patient attended at the respondent's surgery. On both occasions, the respondent masturbated patient to the point of ejaculation. He appeared to test the semen. On the second occasion, the respondent took a blood sample from Patient R.

44 It is no small irony that Patient R later studied medicine and became a medical practitioner. At the time of the second consultation, Patient R was a medical student. Nevertheless, he submitted to the assault, although he felt uncomfortable, but still trusted the respondent's professional knowledge and ability. Indeed, the patient spent one week of his general practice placement at the respondent's surgery in the middle years of his medical training. At a later time, when he eventually realised that what had occurred was not a proper medical procedure, Patient R was working at the Royal North Shore Hospital as a junior colleague to the respondent. He expressed a sense of shame and therefore, did not discuss the details of the sexual abuse inflicted upon him.

45 Patient R regretted that he did not come forward earlier, but he stated that he still felt uncomfortable about such a public disclosure and its potential effect on his family. However, since that time, Patient R has become a strong advocate for the protection of children and young people from sexual and other abuse.

46 Patient S was aged between 11 and 13 years. On one occasion, between January 1973 and December 1975, he attended at the respondent's surgery for medical attention for a cold or flu. The respondent told him that he required "some fluid from his penis" and masturbated him for 10 to 15 minutes. The patient failed to get an erection. The patient stated that whilst he viewed the incident with mild suspicion, it seemed to him that the likelihood of a doctor abusing a young patient was so unlikely that he thought that he had misconstrued the respondent's actions.

47 Patient T was aged between 11 and 13 years. On an occasion between July 1976 and December 1977, the patient attended at the respondent surgery. The respondent stated that he needed a semen sample. Patient T commenced to masturbate and the respondent then came and took over. The respondent appeared to become frustrated and said: "try harder" and "I really need this". Due to his age, Patient T did not understand what was happening and therefore did not complain.

48 In summary, the respondent's misconduct took place between 1969 and 1982, a period of 13 years, and involved 33 offences of indecent assault on 16 teenage boys. The Tribunal is comfortably satisfied that the respondent acted in the manner set out above.

49 In each case, the respondent indecently assaulted his young patients in the guise of rendering legitimate medical treatment. In each case, he used his position as a trusted medical practitioner to gain access to young and impressionable boys, no doubt for his own sexual gratification, and without regard to the well-being of his patients. The conduct took place over a significant period of time, and it has had a profound and lasting effect upon many of the victims. The degree of abuse of trust and the dominance in the relationship of a medical practitioner over his patients, is emphasised by the trust reposed in the respondent by Patient R, who himself became a medical practitioner, but nevertheless trusted the respondent, whilst he himself was abused as a medical student. There is little doubt that the respondent's behaviour constituted a gross dereliction of his obligations as a medical practitioner.

50 The HCCC relies upon this conduct to establish that the respondent is not a suitable person to hold registration in the medical profession. The Tribunal notes that the National Law does not define the words "suitable" or "unsuitable". That law, however, indicates that in given circumstances, the National Board may have regard to a person's criminal history (as relevant to his/her professional practice) to assess the suitability of an applicant for registration - section 55 (1).

51 Care must always be taken when having regard to cases, which turn upon different legislation. However, some guidance can be obtained from the decision of the Court of Appeal in HCCC v Litchfield (1991) 41 NSWLR 630, which considered counterpart provisions of the Medical Practice Act 1992 (repealed). In that case, the Medical Tribunal determined that a medical practitioner had engaged in inappropriate sexual conduct towards three female patients and suspended him from practice. The practitioner had been acquitted on criminal charges arising from the same facts. The Court of Appeal allowed the appeal and determined that the practitioner's conduct warranted his name being removed from the register.

52 The Court of Appeal considered that the Tribunal had failed to properly exercise its discretion. It had taken into account that the events were of "considerable antiquity" - however, the Court noted that the inappropriate conduct had involved three different female patients in three different places at different times. The doctor had denied he had committed the conduct alleged and the proceedings were strongly defended. The doctor did not offer any explanation which "made it unlikely that the conduct would occur again". Furthermore, "there was nothing to suggest that the doctor had become a changed person ...". The Court referred to the absence of any admission of guilt or expression of contrition. Nor was there any claim that the incidents were some isolated or passing departure from proper professional standards.

53 The Court of Appeal concluded: "In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. ... Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession."

54 Some but not all these considerations apply in the present case. There has been a significant lapse of time between 1982 and the present. There is nothing to suggest that the respondent continued his misconduct after that time. However he did defend the earlier matters before Flannery DCJ, only pleading guilty after he was found guilty after trial. His expression of contrition is perfunctory and fails to acknowledge the harm he has caused to the victims. Furthermore, and most importantly, there is no explanation as to why this conduct took place. In our view, these considerations are significant in determining whether or not (age aside), there is a prospect of recurrence of the relevant misconduct.

55 The Tribunal accepts the submission of the HCCC that there was a disproportionate power imbalance in the relationship on two levels: that of doctor-patient and that of an adult and minor. Furthermore, we accept that, absent any explanation for his misconduct, the Tribunal cannot make an assessment as to whether the respondent had any insight into his misconduct or any motivation to remedy the underlying causes.

56 Accordingly, the Tribunal is comfortably satisfied that the respondent is not currently a suitable person to practise medicine. This is because the respondent's history as set out above shows grave deficiencies in his professional conduct: his conviction in 1986 for offences involving fraud in the practice of medicine indicate a lack of honesty and integrity; the indecent assaults underpinning, many of the current complaints, indicate his present unsuitability to deal professionally with younger patients; and his failure to abide by the Practice Conditions, indicate his lack of appreciation or insight of the need to protect younger members of the public from his misconduct. In short, the respondent has demonstrated that he lacks the capacity to place the needs and well-being of his patients over his personal inclinations.

57 The Medical Profession is an honourable profession dedicated to curing those with illness and injury and alleviating pain. The Australian Medical Association Code of Ethics - 2004, states that the code has grown out of other similar ethical codes stretching back into history including the Hippocratic Oath. The Code states as follows:

Because of the special knowledge and expertise, doctors have a responsibility to improve and maintain the health of their patients who, either in a vulnerable state of illness or for the maintenance of their health, entrust themselves to medical care.

The doctor-patient relationship is itself a partnership based on mutual respect and collaboration.

58 The Code embodies the principles that the doctor must consider first the well-being of the patient; he or she must treat the patient with compassion and respect; the doctor must make sure that he or she does not exploit the patient for any reason, and the doctor should avoid engaging in sexual activity with the patient.

59 At least one translation of the Hippocratic Oath includes the following:

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

...

Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, or mischief, and in particular of sexual relations with both female and male persons ...

60 The principle which guides the proper practice of his profession is set out in section 3 of the National Law which refers to the rationale behind the National regulation and accreditation of health practitioners in terms of the protection of the public by ensuring that health practitioners are suitably competent and act ethically - section 3 (2) (a).

61 The effective functioning of the profession relies upon a relationship of trust between doctor and patient. The patient may confide many private and delicate matters, which may be of an embarrassing and confidential nature. Furthermore, a patient reposes such trust in the doctor, which permits the latter to view and touch intimate parts of the patient's anatomy and to do things which in other circumstances may constitute a criminal offence. This invasion of privacy is permitted by patients, because of the close nature of the relationship and because the patient believes that the doctor is acting in pursuit of a higher purpose of assisting the patient in relation to his or her illness or injury and not out of personal gratification or self-interest.

62 Absent this relationship of trust, the doctor-patient relationship is rendered less effective in achieving those noble objects, if unworkable. Every doctor who breaches that relationship contributes to a wider scepticism amongst the community that the medical profession is indeed an honourable one, dedicated to these ideals.

63 As the Court of Appeal noted in Litchfield at page 638:

Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right-thinking members of the profession observe, and expect their colleagues to observe.

64 In our view, these statements apply with equal force to male patients, including teenage boys. Furthermore, the observations of Priestley JA in Richter v. Walton Court of Appeal (15 July 1993, unreported), at pages 8 and 9, apply in the present case:

The degree of trust, which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, ... the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way, but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations, and are expected to maintain very high standards: all this being very much in the public interest.

65 Finally, it is useful to recall the statement of Viscount Simon LC in General Medical Council v Spackman [1943] AC 627, where his Lordship stated:

The high reputation of the medical profession as a whole depends in no small measure on excluding from that those whose professional misconduct make them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour.

66 Apart from pleading guilty to various but not all of the criminal offences, and not contesting the proceedings, the respondent has expressed remorse in a most perfunctory way. The Tribunal acknowledges that his later conduct in pleading guilty (and his admissions in these proceedings) has spared the victims further trauma in having to give evidence.

65 The respondent's statement in these proceedings concludes with the statement: "I can indicate to the Medical Tribunal of New South Wales, that I am truly contrite for my behaviour, the subject of the Amended Complaint". Given the fact that the Complaint covers behaviour involving breach of Practice Conditions as well as the more serious matters, this statement of remorse is not convincing. More particularly, there is no recognition of the harm the respondent has caused to the many teenage boys involved in his offences. Absent such recognition, and consequently accountability and insight, the Tribunal is left with a serious question mark as to the respondent's current fitness to practise and to hold registration.

Orders

66 The Tribunal finds to the requisite degree that, the respondent is guilty of professional misconduct. The Tribunal finds that the respondent has been convicted of the aforementioned criminal offences in New South Wales District Court and the circumstances of the offences render the respondent unfit in the public interest, to practise the medical profession. Finally, the Tribunal finds that the respondent is not a suitable person for registration as a medical practitioner.

67 The position so far as the respondent's registration is a little unclear. His counsel has suggested that he has not renewed his registration and hence, it has elapsed. On the other hand, the certificate from the Australian Health Practitioner Regulation Agency which is in evidence before the Tribunal, suggests that the respondent's registration is suspended. In these circumstances, we consider it appropriate to make orders in the alternative.

68 The Tribunal accepts the submissions of the HCCC that it is in the public interest for the respondent's registration to be cancelled. Furthermore, we accept that the order suggested by the HCCC that the respondent not be permitted to reapply for re-registration for a period of four years from the date of the order, is appropriate. Although on one view, the period of four years it is somewhat arbitrary, given the unresolved issues of the respondent's insight and rehabilitation, given his age, the order appears appropriate. The respondent has made no submissions in opposition to these orders.

69 The HCCC submits that it is appropriate to make an order pursuant to section 149C(5)(a) of the National Law that following cancellation of the practitioner's registration, he should be prohibited from providing health services for a period specified by the Tribunal. A pre-requisite for such an order is that the Tribunal must be satisfied "the person poses a substantial risk to the health of members of the public". The Tribunal notes that Flannery DCJ, in her Honour's sentencing remarks of 24 June 2011 accepted on the balance of probabilities that the offender had rehabilitated himself and was unlikely to re-offend. Her Honour's conclusion was based on the extensive references provided to the Court.

70 Her Honour noted that it was difficult to reconcile the man those referees knew over the past 30 years with the man who committed these offences. Given the admitted offences occurred covertly and with no immediate complaint from the young victims for many, many years, we share her Honour's note of caution. This Tribunal does not proceed on the basis that the respondent may have continued his misconduct after 1982, because clearly there is no evidence for that proposition. On the other hand, the note of caution compels this Tribunal to reach a different conclusion concerning the respondent's rehabilitation. In short, we are left in a neutral position - i.e., we are simply unable to say on the state of the evidence that the respondent is rehabilitated or not. Bearing in mind the orders that we propose are protective in nature, the Tribunal is of the opinion that an order should be made pursuant to section 149C(5)(a). The respondent did not argue against the making of such an order.

71 The Tribunal proposes to make the following orders:

i. The respondent's registration is cancelled;

ii. alternatively, (if the respondent's registration has lapsed) had the respondent been registered, the Tribunal would have cancelled the registration on the bases of section 149C(1)(b), (c) and (d) of the National Law and would have disqualified him from being registered in the health profession for a period of four years - section 149C(4);

iii. the respondent is not permitted to reapply for review of his registration for a period of four years from the date of this order; and

iv. the practitioner is prohibited from providing health services generally until such time as he is reinstated to the Register of medical practitioners.

Costs

72 The HCCC makes application that the respondent pay the costs of the proceedings. Counsel for the respondent contests that application, submitting that from an early point of time, the respondent, through his lawyers, indicated that he would not be defending the proceedings. The salient facts are that the matter was before the Court for a directions hearing on 31 January 2013 when the hearing date was set. On 25 March 2013, the respondent's bundle was served. It contained a statement of the respondent dated 28 February 2013, indicating that he had no further intention of practising medicine in the future, and therefore did not propose to renew his registration when it fell due. That was a position he had expressed in an earlier Statutory Declaration dated 3 June 2011, and the statement indicated he maintained that position.

73 It is accepted by the respondent that there was no application to vacate the hearing date. Furthermore, the position appears to be that there was no contact between the solicitors for the HCCC and the solicitors for the respondent concerning the future progress of the hearing. The Tribunal was informed that there was contact between counsel in the week prior to the hearing but no acknowledgement by the respondent, that he would accept the orders sought by the HCCC.

74 It is a little puzzling to the Tribunal why there were no communications between the parties as to the necessity for any formal hearing. Given that the respondent's statement indicated no future intention on his part to practise, and his advanced years, it is difficult to see how within those parameters, there would be any contested hearing as to the orders ultimately sought by the HCCC.

75 Counsel for the HCCC referred to section 167 of the National Law, which she submitted, correctly in our view, gave a discretion to the Tribunal to conduct a hearing in circumstances where the complaint has been admitted. She submitted that whatever position the parties might take, it was a matter for the Tribunal to ultimately determine the necessity for a hearing. That is correct as far as it goes. However, it is difficult to see how the Tribunal could properly exercise its discretion if neither party brought to its attention, the fact that in effect, there would be no contest.

76 The Tribunal notes that the Civil Procedure Act 2005 does not apply to proceedings before this Tribunal. However, we consider that it is not inappropriate to apply by analogy the provisions of section 56 of that Act, which refers to the overriding purpose of those provisions being to facilitate the "just, quick and cheap resolution of the real issues in dispute". Similar notions appear to underpin Clause 11 of Schedule 5D of the National Law, which refers to the duty of the Tribunal to expeditiously determine Inquiries. We recognize that disciplinary proceedings are not civil proceedings and, accordingly, the practice and procedure to be adopted by the Tribunal must accord with the provisions of the National Law. The fundamental purpose of disciplinary proceedings, is to protect the public and preserve the integrity of the medical profession, in this particular case. We also accept, as counsel for the HCCC submitted, that there is a real public interest in the proceedings of the Medical Tribunal being publicised to inform the public, to deter members of the medical profession minded to act inappropriately and to vindicate the victims of any unprofessional conduct or professional misconduct perpetrated by any given medical practitioner. Indeed, counsel submitted that a number of the victims involved in the present proceedings, have remained in contact with the HCCC to monitor the progress of these proceedings.

77 The Tribunal does not consider that even if an inquiry was dealt with in the absence of a public hearing, or alternatively a very curtailed public hearing, such as occurred here, that that precludes the publication of a judgment or determination by the Tribunal.

78 Counsel made reference to three decisions, one of the Medical Tribunal and two of the Nursing and Midwifery Tribunal in which the issue of costs was considered, in circumstances where there was no contest or no significant contest. In each case, the relevant Tribunal considered it appropriate to award costs to the HCCC.

79 The Tribunal accepts that the following principles apply: the Tribunal has an unfettered discretion (to be exercised judicially) to award costs to any party to an Inquiry - clause 13 of Schedule 5D of the National Law. It is not immediately clear from clause 13 that the ordinary rule in civil litigation applies, namely that a successful party has a reasonable expectation of being awarded costs against the unsuccessful party - see Oshlack v. Richmond City Council [1998] 193 CLR 72, [1998] HCA 11 at [134] cf NSW Medical Board v Dinakar [2009] NSWMT 8 at [42] - [44], where the Tribunal acknowledged its unfettered discretion in this regard, but nevertheless applied the civil law rule. The issue of costs in disciplinary proceedings is not identical to civil litigation - Ohn v Walton (1995) 36 NSWLR 77. The purpose of an order for costs is compensatory not punitive - Latoudis v Casey (1990) 170 CLR 534. The discretion should be exercised judicially, in accordance with the rules of reason and justice, and not in accordance with benevolence or sympathy.

80 The authorities referred to by counsel are in our view, materially different to the present case. In HCCC v Greenwood [2011] NSWNMT 13, the practitioner did not appear and advised the Tribunal that she did not wish to contest the hearings nor practise as a nurse or midwife again. Despite those indications, the practitioner proffered some exculpatory considerations in relation to one of the complaints, did not admit a complaint, and made incomplete admissions to a further complaint. Against this background, the Tribunal awarded costs against practitioner noting at [59]:

The Tribunal acknowledges that it is not required to conduct an inquiry into a particular and may make protective orders in relation to it if a nurse or midwife who a complaint is about, admits that complaint in writing to the Tribunal. However, this case shows why the decision not hold an inquiry is discretionary.

81 In HCCC v Gower [2011] NSWNMT 17, the practitioner was represented by counsel and admitted all the particulars of the complaint. There was however a contest about the appropriate protective orders to be made and evidence was given by the practitioner in this regard. In our opinion, this is a material difference to the present case.

82 Finally in HCCC v Rahman [2013] NSWMT 6, the medical practitioner appeared in person, and whilst admitting the complaints, requested the Tribunal to allow him to practise, upon his release from prison. In those circumstances, the Tribunal awarded costs against him. Again, this is a significantly different situation to the present.

Counsel for the respondent stated that his client had served a jail term and wished to proceed with his life, without any contact with the provision of medical or health services. Given his age and circumstances, this is a reasonable and understandable approach. In our opinion, the respondent, through his lawyers has done all that can be reasonably expected of him to finalise the proceedings in an expeditious manner. The Tribunal accepts that the primary purpose of costs is to compensate the successful party. The Tribunal also accepts that the question of whether an award of costs works hardship on a party against whom it is made, is not a relevant matter in the decision to award or not to award costs. It is the conduct in the course of the proceedings and the result, which are in our view relevant.

83 For these reasons, the Tribunal considers it appropriate that each party pay its own costs, from the time that the respondent's statement was served on the HCCC. In our opinion, the content of the statement should have precipitated communications between the parties and the potential shortening of this matter, perhaps even to the extent of rendering unnecessary a formal hearing. The Tribunal confirms the preliminary indication it gave that a costs order should be made on this basis.

Conclusion

84 The Tribunal makes the following orders:

i. The respondent's registration is cancelled;

ii. alternatively, (if the respondent's registration has lapsed) had the respondent been registered, the Tribunal would have cancelled the registration on the bases of section 149C(1)(b), (c) and (d) of the National Law and would have disqualified him from being registered in the health profession for a period of four years - section 149C(4);

iii. the respondent is not permitted to reapply for review of his registration for a period of four years from the date of this order;

iv. the respondent is prohibited from providing health services generally until such time as he is reinstated to the Register of medical practitioners.

v. the respondent is to pay the costs incurred by the HCCC up until 25 March 2013; thereafter, each party is to pay its own costs.

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Decision last updated: 05 June 2013