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Supreme Court 25 July 2011

Health Care Complaints Commission v Kristin Scott Stoker

[2011] NSWSC 960

Public order & justice offences
MEDICAL PROFESSION NO POWER TO IMPOSE CONDITION ERROR OF LAW CONDITIONS IMPOSED ON PROFESSIONALS NOTIFICATION ONLY ONE WORKING DAY LATE IMPACT OF CRIMINAL CONVICTIONS

Citation: Health Care Complaints Commission v Kristin Scott Stoker [2011] NSWSC 960
Court: Supreme Court of New South Wales
Date: 25 July 2011
Judge: Brereton J

Background

The defendant was a registered chiropractor who, in May 2007, was convicted of exposing his person in or within view of a public place, an offence under s 5 of the Summary Offences Act 1988. He had contested the charge through the Local Court, District Court, and ultimately the Chiropractors Tribunal, maintaining his innocence throughout. A section 10 order (meaning no conviction was formally recorded at the time) had been granted on appeal in the District Court, though the original Local Court conviction remained the operative fact for the complaint.

The Health Care Complaints Commission brought three complaints to the Chiropractors Tribunal: that the conviction rendered the chiropractor unfit in the public interest to remain registered; that he was not of good character; and that he had failed to notify the Chiropractors Registration Board of his conviction within the required seven days. The Board received notification one working day late.

The Tribunal found the conviction established but declined to find the chiropractor unfit, not of good character, or guilty of unsatisfactory professional conduct. It did, however, impose a "chaperone" condition requiring an adult female to be present during the treatment of female patients under 45. The Commission appealed to the Supreme Court on three grounds of alleged errors of law.

  • Whether the Tribunal erred in law by taking into account an irrelevant consideration (the availability of a supervisory condition) when assessing whether the conviction rendered the chiropractor unfit in the public interest to be registered (Complaint One).
  • Whether the Tribunal erred by failing to treat the chiropractor's sworn denial before the Local Court as a relevant consideration in determining whether he was not of good character (Complaint Two).
  • Whether the Tribunal was bound on the primary facts found to conclude that the one-day-late notification constituted unsatisfactory professional conduct (Complaint Three).
  • Whether the Tribunal had the power to impose the chaperone condition given its findings on the complaints.

Decision

Complaint One: Unfitness to be registered. Brereton J found that the Tribunal did commit an error of law. The power under s 26(2)(a) of the Chiropractors Act was conditional on a finding that the circumstances of the offence rendered the chiropractor unfit in the public interest to be registered. The Tribunal conflated that question with whether conditions could be imposed to manage risk, which are conceptually distinct. A condition may be imposed to maintain public confidence even where a practitioner is not unfit; conversely, the existence of a possible condition cannot logically be the reason for finding a practitioner fit. Despite this error, the judge independently assessed the evidence and concluded that, given the nature of the offence at the lower end of the criminal scale and the lack of any nexus to chiropractic practice, the chiropractor was not unfit to remain registered. The substantive outcome was therefore unchanged.

Complaint Two: Good character. The Commission argued the Tribunal failed to account for the chiropractor's sworn denial of the conduct before the Local Court. Brereton J found no error of law on this ground. To establish a legal error, the Commission needed to show either that the Tribunal misapprehended its task or that it was bound on the facts to find the chiropractor was not of good character. The Tribunal had in fact considered the denial. The judge noted that people decline to admit wrongdoing for many reasons, that a conviction at the lower end of the criminal scale does not automatically destroy good character, and that the one-day-late notification was too trivial a matter to inform an adverse character finding. The appeal on this ground was dismissed.

Complaint Three: Unsatisfactory professional conduct. Brereton J allowed the appeal on this ground. The notification had been received one working day late, a technical but real breach of s 21(1)(a) of the Chiropractors Act, which constituted unsatisfactory professional conduct under s 25. The Tribunal was bound on its own findings to reach that conclusion and erred in law by not doing so. However, given the extreme triviality of the breach, the Court declined to exercise any consequential powers under ss 50 or 51 of the Act.

The chaperone condition. Because the Tribunal lacked the jurisdictional precondition to impose conditions under Complaint One (having not found the chiropractor unfit), the condition it imposed was made without power. The Court set aside that order. The chiropractor gave an undertaking to the Court to accept an equivalent condition on his registration for two years from the original Tribunal order date, and on that basis the Complaint One appeal was otherwise dismissed.

Orders Made

  • The chaperone condition imposed by the Chiropractors Tribunal (paragraph 4 of its orders) was set aside.
  • Upon the chiropractor's undertaking to accept an equivalent chaperone condition on his registration for two years from 25 August 2010, the Complaint One appeal was otherwise dismissed.
  • The Complaint Two appeal was dismissed.
  • The Complaint Three appeal was allowed; a finding of unsatisfactory professional conduct was substituted.
  • No consequential orders (such as suspension or cancellation) were made in respect of the Complaint Three finding.
  • The Health Care Complaints Commission was ordered to pay the chiropractor's costs of the appeal.

Key Takeaways

  • A Chiropractors Tribunal (and by analogy, equivalent disciplinary tribunals) cannot use the availability of a supervisory or chaperone condition as a basis for concluding a practitioner is fit. Fitness and the utility of conditions are separate inquiries, and confusing them constitutes an error of law.
  • Criminal convictions do not automatically render a health professional unfit to be registered or establish that they are not of good character. The nature of the offence, its connection to professional practice, and the full circumstances all bear on that assessment.
  • Under the Chiropractors Act, failing to notify the Board of a conviction within the seven-day window is a technical breach capable of constituting unsatisfactory professional conduct, even where the delay is only one working day. However, the triviality of such a breach may mean no consequential order is warranted.
  • In dismissing the good character appeal, the Court confirmed that a practitioner's refusal to admit wrongdoing, even in contested proceedings, does not of itself establish an adverse character finding. Many lawful reasons may explain such a refusal.
  • Where a disciplinary tribunal lacks the jurisdictional precondition to make an order, any order purportedly made in the exercise of that power is invalid and must be set aside, even if the outcome sought is otherwise defensible.

Legislation and Cases Referenced

Legislation
- Chiropractors Act 2001 (NSW), ss 21, 25, 26, 50, 51
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Health Practitioner Regulation National Law (NSW) No 86a, ss 162, 162A, Sch 5A cl 4(3)
- Health Practitioner Regulation Amendment Act 2010 (NSW)
- Summary Offences Act 1988 (NSW), s 5

Cases
- A Solicitor v Council of the Law Society of New South Wales (2002) 216 CLR 253
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Ex parte Tziniolis; Re The Medical Practitioners Act (1967) 84 WN (NSW) (Pt 2) 275
- Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
- Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
- Health Care Complaints Commission v Stoker [2010] NSWCHT
- Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323
- Hope v The Council of City of Bathurst (1980) 44 CLR 1
- In the Matter of Alger Hiss (1975) Mass 333 NE 2d 429
- McBride v Walton [1994] NSWCA 199
- Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
- Smith v New South Wales Bar Association (1992) 176 CLR 256
- Ziems v The Prothonotary of the Supreme Court of New South Wales (1957