KIRUMBA v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and HANDLEY JJA 30 May 1990, 31 May 1990, 4 October 1990 [1990] NSWCA 107 MEDICINE — medical practitioners — discipline and removal from the register — "professional misconduct" — meaning of — necessity of wrongdoing — whether "improper or unethical conduct" must be shown — whether proof of bipolar mental disorder sufficiently explains misconduct of practitioner in prescribing drugs of addiction to drug addicts, charging cash in addition to Medicare assignments and making sexual overtures to a patient — held: (1) Appeals to the Court of Appeal from the Medical Tribunal are limited to errors in point of law; (2) Accordingly, no appeal arises from a decision on the facts concerning the extent of a medical practitioner's alleged bipolar disorder and whether such disorder was sufficiently severe to explain his misconduct. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Mahony v Industrial Registrar of New South Wales (1987) 8 NSWLR 1; Randwick Municipal Council vy Manousaki (1988) 66 LGRA 330 applied; (4) No error of law was shown in the findings of the Medical Tribunal concerning the degree and significance of the practitioner's alleged disorder; (5) Accordingly, "professional misconduct" had been made out in the sense of wrongful, improper or unethical conduct; (6) It was therefore unnecessary to determine whether such considerations were always required for "professional misconduct" for they undoubtedly existed in this case. Pillai v Messiter (No 2) (1989) 16 NSWLR 197 and Robinson v The Law Society of New South Wales, Court of Appeal, unreported, 17 December 1976 referred to. APPEAL — point of law — stringency of — review of perverse or "extreme" findings of fact — whether available in an appeal limited to point of law — held: (1) On the current authority of the Court of Appeal even perverse findings of fact do not of themselves raise a point of law. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 applied; Edelsten vy Ward [No 1] (1988) 63 ALJR 345 referred to; (2) Leave should not be granted to reargue the holding in Azzopardi in the instant case, inter alia because the findings of fact made in the Medical Tribunal were clearly open to it and were not on any view "extreme" or "perverse". WORDS and PHRASES — 'professional misconduct'. Compensation Court Act 1984, s32. Medical Practitioners Act 1938, s27, s28, s32I, s32R, s32U, s32V. Kirby P, Mahoney and Handley JJA. On 13 March 1990 the Medical Tribunal orderedthat the name of Dr James Kirumba (the appellant) be removed from the register of medical practitioners. It did so, concluding an inquiry under s31(1)(a) of the Medical Practitioners Act 1938 (the Act). That inquiry involved the investigation of two complaints brought against the appellant on behalf of the Director General of the Department of Health. The complaints alleged that the appellant had been guilty of professional misconduct within the meaning of s28(1)(d) of the Act. The appellant, being dissatisfied with the decision and order of the Tribunal appeals to this Court. Under s32U(1) of the Act, an appeal lies to this Court against a decision of the tribunal only (relevantly) "with respect to a point of 2 UNREPORTED JUDGMENTS law". Much time in the appeal was expended in the endeavour to present the complaint of the appellant concerning the conclusions of the Tribunal as a point of law when, in reality, it was manifestly a complaint about the conclusions of the Tribunal on the facts found by it. Complaints including prescribing drugs of addiction The complainant before the Tribunal made a number of admissions of conduct which, unexplained, would constitute professional misconduct both within the inclusive definition of that phrase in s27(1) of the Act and by the ordinary meaning of the word. Between June 1988 and July 1989 the appellant prescribed excessive amounts of drugs of addiction and dependence to 33 patients. These were the patients referred to in the schedule to the first of the two complaints brought against him before the Tribunal. The complaints alleged that the appellant had failed to exercise reasonable medical judgment both in the frequency and dosages of the drugs prescribed. In many cases it was suggested that the dosage prescribed was actually in breach of the requirements of the Poisons Act. The Tribunal found that at least 19 of the patients referred to in this complaint were young drug addicts whom the appellant knew, or should have known, were likely to misuse the drugs provided to them as a result of his prescription. In some cases, the patients had actually told the appellant that they were addicted to heroin. The evidence disclosed that the prescriptions were given to the patients on demand. Often this followed a complaint of pain; but not always. Typically, no other treatment at all was afforded to the patients who complained of pain, other than the supply to them of the drugs which they requested. In the case of three patients who gave evidence (and a fourth who gave a statement) the appellant demanded payment in cash in exchange for the prescription of the drugs. In the case of one patient (patient A), the appellant prescribed 100 Nembudeine tablets on 5 July 1989. This was two days after that patient had been released from the Royal Newcastle Hospital after detoxification from Nembudeine and stabilisation on methadone. The patient had been a patient of the appellant's since 1986. The appellant knew of her discharge from hospital. It must be inferred that he knew of her drug addiction. In the case of patient C, the appellant was shown on that patient's hospital record as the patient's medical practitioner. He knew that the patient was a schizophrenic and that he had been hospitalised for that condition in June 1989. Yet after his discharge from hospital, the appellant continued to prescribe for him drugs of addiction and dependence. He did so up to the time that the patient was hospitalised for a drug overdose on 20 July 1989. On 20 July 1989 the appellant voluntarily surrendered his authority to supply, possess and administer drugs of addiction. He did so as a direct result of investigations by officers of the Health Department who were by that time closing in on him. Nevertheless, after that time and despite the surrender of that authority he continued to supply such drugs. On 12 July 1989, he provided what appears to have been a forged prescription apparently in the name of another medical practitioner. On 18 July 1989, he prescribed drugs of addiction to a patient, notwithstanding the surrender of the authority. On one occasion he backdated a prescription to a time prior to the withdrawal of his authority. The Tribunal found the above facts and found that the appellant knew what he was doing when he proceeded to provide the patients with addictive drugs in the way he did. URJ KIRUMBA v WALTON (Kirby P, Mahoney and Handley JJA) 3 A second series of complaints relied upon a number of statutory declarations provided by other patients who had consulted the appellant. To one patient, addicted to heroin (patient 'V') the appellant was alleged to have prescribed an addictive drug, telling the patient that it would cost $50 and that he was not to tell anyone, not even the nurse, what he wanted when he telephoned for an appointment. In about May 1989, this patient was told by the appellant: "Things are getting difficult, I'll have to slow the scripts down, somebody is trying to check up on me..... it's going to cost double." He then agreed to take $80 for a script. He provided patient V with scripts with different dates on them with a warning about not going to the chemist in the same building. Before this patient left the surgery, he also signed a Medicare assignment form. He was told by the appellant "the police are asking a lot of questions". There were several patients who gave similar testimony. One, on a third or fourth visit in 1989, was told by the appellant that he was charging $20 for the script. She gave him that money. The appellant explained: "Tam charging the money in case the Medical Board comes down on me. I will need the money so I can defend myself." On another occasion he told this patient (patient R): "T could get into trouble for prescribing these. " Once, when the patient told the appellant that she only had $10 and that she would pay him a further $10 next time, the respondent said to her "I'd prefer the sex". He repeated this suggestion on several later occasions and on one occasion, the respondent kissed the patient on the lips. The foregoing describes the general nature of the complaints brought against the appellant. They suggested a medical practitioner who had become the dispenser of addictive drugs to persons known to be addicted, in most cases to heroin. They painted a picture of a man unconcerned in the orthodox treatment of such addicts, inattentive to their physical treatment, indifferent to the provision of therapy to help them to escape their addiction but willing to prescribe drugs of addiction although at a price, often, of cash payments in addition to the Medicare assignment and, on one occasion, for suggested sexual favours. Virtually all of the facts which sustain the Tribunal's findings on the complaints before it were either admitted or not substantially contested. In particular, despite an opportunity to do so, counsel then appearing before the Tribunal on behalf of the appellant did not cross-examine the patients on their testimony although having been provided with the opportunity to consult with the appellant and his medical adviser and the time to receive instructions to do so. Evidence of the bipolar condition of the practitioner Unexplained, there was no question but that the foregoing facts, standing alone, would have warranted the finding of professional misconduct made. However, the facts did not stand alone. Evidence was called on behalf of the appellant to suggest that he suffered from a condition, biochemical or psychological, which was formerly known as "manic depression" and is now described as a "bipolar disorder". It was argued for the appellant before the Tribunal that this disorder explained the conduct of the appellant. It was sufficiently severe to propel him into irrational activity. Its severity thus explained his behaviour. So explained, the appellant's conduct did not amount, in law, to "professional misconduct" under the Act. It did not have the quality of impropriety or of unethical conduct related to the practice of medicine which was necessary to make out the complaint. Alternatively, the appellant's peers in the medical profession, informed not only of his conduct but also the medical reasons 4 UNREPORTED JUDGMENTS which lay behind it, would not conclude that it amounted to "professional misconduct" so as to require the removal of his name from the register of medical practitioners. Cf Oidwai v Brown (1984) 1 NSWLR 100, 104. Instead, the correct course to adopt (so it was argued) was to make a finding under s28(1)(e) of the Act that the appellant did not have "sufficient physical and mental capacity to practise medicine. Such a finding might be followed by a consequential order under s32R(1)(b), ordering the appellant to seek medical or psychiatric treatment or counselling and under 32R(1)(g) suspending him from practising medicine for a specified period. The period, so it was argued, would be limited by the time necessary to assure the Tribunal that the causes of the apparent misconduct on the part of the appellant had been either removed or adequately brought under control by medication and counselling. Before the Tribunal, the appellant made it plain that he would consent to a finding under s28(1)(e) and to an order which prevented him from practising medicine for the time being, until certified fit to return to his practice. There is no doubt that this option was placed before the Tribunal. However, it declined to accept it. Nevertheless the appellant urged that this Court would take that option. He asserted that power to so order was sufficiently conferred on the Court of Appeal by s32(3)(b) of the Act, importing s32R. The Tribunal found that the appellant did indeed suffer from bipolar disorder. However, it decided that, in his case, the disorder was mild. It was not sufficiently severe to explain the conduct proved against him. On the contrary, that conduct, in many respects, demonstrated a degree of insight on the part of the appellant into his wrongdoing. Specifically, the Tribunal found that the failure of the appellant to give evidence before it, although allegedly based upon medical advice, was unjustified. That conclusion, in turn, led to inferences being drawn against the appellant unfavourable to his contentions and to conclusions being reached against him more comfortably, by reason of the absence of testimony on his part. Conflicting evidence of degree and effect of condition The Tribunal was not in doubt as to the issue posed for it by the way in which the appellant conducted his case. The question before it was whether the appellant had been shown, to the requisite standard, to have been guilty of "professional misconduct". The facts proved appeared to show as much. But the appellant's case was said to cast doubt upon that conclusion. However, before that doubt could be shared, a crucial factual question had to be decided by the Tribunal. This was whether the real explanation of the appellant's conduct was his alleged bipolar condition. Upon that question, the Tribunal had the assistance of medical evidence. It is also to be remembered that the Tribunal is a specialist body. Although a Judge of the District Court presides over its hearing and deliberations, the Tribunal includes medical practitioners. One of the medical practitioners participating in the Tribunal hearing the complaints against the appellant was (as was common ground) himself a specialist psychiatrist. As the transcript of evidence shows, he took an active part in elucidating, by questioning, the nature, degree and consequences of the appellant's alleged disorder. Called before the Tribunal to give evidence of the appellant's condition was Dr B Glass, a specialist psychiatrist. On the basis of the history he had received, Dr Glass agreed that the appellant manifested symptoms which "could be in keeping with a bipolar disorder". He described this to involve "phases of depression with URJ KIRUMBA v WALTON (Kirby P, Mahoney and Handley JJA) 5 phases of hyperactivity of variable degree". In a report prepared before he gave evidence, and tendered before the Tribunal, Dr Glass said: "The diagnosis that Dr Kirumba has experienced an emotional disorder over the past three years is made purely on history provided by his wife. This disorder demonstrates features of a bipolar illness. In spite of feeling unwell, it would appear that Dr Kirumba has managed to continue with medical practice and as such this emotional state was probably not of major proportion. The issue at stake bears on the question whether Dr Kirumba's emotional state was so disturbed as to influence his prescribing habits. I could not find any definitive evidence to support this point of view and would believe that his emotional disorder and the allegations in question [should] be treated as separate entities." In cross-examination before the Tribunal, Dr Glass was inclined to enlarge his opinion. However, he did so upon the basis of further material as to the history of Dr Kirumba: "Q: Now that you have had the opportunity to read some of the other history as described of Dr Kirumba, would you agree with me that the degree of severity of the bipolar disorder that Dr Kirumba exhibited was of the order of moderately severe? A: Yes. Q: When one bears in mind the fact that such a dramatic change of personality was noted and also in prescribing habits... Would you agree with me that it is then possible that the reason for the change in prescribing habits of the sort set forth in this complaint could be consistent with it being caused or due to the disorder that Dr Kirumba had? A: I can't disagree with that statement." Counsel for the respondent then tackled Dr Glass with still further factual material, this time from the allegations of patients concerning the demands for money for the supply of addictive drugs: "Q: Is an activity such as demanding money in those circumstances consistent with hypomania if at the same time the doctor was or had an insight that what he was doing was unlawful or medically unethical? A: Could you say it again? Q: I want to take you to an example where the money is being asked. I want you to assume at that particular time the doctor had an insight or understanding that what he was doing was unlawful or unethical. Under those circumstances would the demanding of money be still consistent with hypomania? A: I would say inconsistent with hypomania. Q: Why is that? A: Because if you know what you are doing it comes back to the word of insight, and having an awareness that what one was doing was wrong and unethical and inappropriate. It depends on hypomania. If it is mild, the patient will be able to say, what I am doing is wrong, or what my actions are are wrong, Now if a hypomania is mild, the person should be able to contain that behaviour. If the hypomania is severe or moving along the gradation that will be lack of insight and inability to control. HIS HONOUR: Q: If it is moderate? A: I think it is not here and not there probably. It is a clinical assessment at the time. I would believe moderate on words the patient would have little ability to control." Dr Kenneth Dyball is also a psychiatrist. He too was called before the Tribunal. He said that on interview, shortly before the hearing in the Tribunal, the appellant showed no evidence of manic or psychotic behaviour. Upon the basis of the interview there was insufficient evidence for him to make a diagnosis of a personality disorder. He secured permission to speak to Drs MacIntosh and Williams, medical practitioners who knew the appellant. From conversations 6 UNREPORTED JUDGMENTS with them, Dr Dyball concluded that the appellant had been suffering a bipolar disorder. He also read the transcript of evidence including descriptions of the appellant's behaviour. Upon the basis of that evidence he concluded that it was more likely than not that the appellant's abhorrent behaviour was "illness driven". But in cross-examination Dr Dyball agreed that his assessment was that the appellant might be suffering from "mild hypomania". He explained this as meaning that the appellant had not had himself thrown into goal or walked down the street with no clothes (as might presumably occur in more severe manifestations of hypomania). Dr Dyball said that the strength or weakness of an opinion about and diagnosis of the appellant's condition depended upon the accuracy of the history received. On the degree of intensity of the appellant's conditions he was asked: "Q: What is the difference between a mild and, perhaps, severe hypomania? A: Somebody who has severe hypomania would be diagnosed by the cleaner as being insane. There would be no doubt about it, everyone would know. Q: Because it manifests itself in the different spheres of their life? A: Yes." Tribunal concludes that the condition was "mild" The Tribunal reviewed this and other medical evidence. This included the evidence of Dr Robert Delaforce who had been retained as a forensic witness but had taken over the treatment of the appellant. The Tribunal concluded that during 1987 and 1988 the appellant was undergoing a period of depression; that this changed in about Christmas 1988 and during 1989 he exhibited manic symptoms of a bipolar disorder. It found that the bipolar disorder from which the appellant suffered was "mild". It concluded that "it did not cause the [appellant] to conduct himself in the manner set forth in the particulars of the complaints". Explaining the finding that the condition was "mild", the Tribunal said: "What the respondent's mental disorder was only a mild disorder is a clear finding of the Tribunal. The psychiatrists who first performed formal examinations of the respondent, namely Dr Glass and Dr Dyball, were not able to find any unusual signs of any such disorder and, whilst they finally expressed views that he did have such a disorder of a mild nature, they based their findings upon the histories given to them of certain episodes in which the respondent had been involved. It is true that Dr Delaforce gave evidence of certain observations and opinions he formed during formal consultations, but they do not always truly coincide with notes made by him at the time... No patient has given evidence in any way critical of the [appellant's] practice of medicine or of any odd or unusual or bizarre behaviour. The [appellant] has given inconsistent statements in histories detailed by medical practitioners... It was in the depressive state of the illness that the [appellant] was told of the dangers of using drugs and the conduct of addicts. During that stage of the illness it is more usual for a person to be more introspective and careful rather than acting with some unshakeable resolution in pursuit of a goal. Since the beginning of the manic phase in December 1988, there was no evidence of any changes or abnormalities in the "appellant's" medical practice other than the misconduct alleged against him. In other words, the disorder did not affect any aspects of his practice or his medical judgment and skills other than improper prescribing of drugs to addicts... There is no doubt that the [appellant's] practice began to change considerably in the latter part of 1988 and during 1989 when new patients, who were drug addicts, began to see him frequently and in larger numbers. This coincided with the departure from the town of a psychiatrist. This change in his practice led to the [appellant] clearly seeking to make money as he URJ KIRUMBA v WALTON (Kirby P, Mahoney and Handley JJA) 7 charged that new group of patients a cash fee in addition to allowing them to fill in a Medicare assignment form. This is a conduct of badness rather than madness." The appellant attacked these findings. He said that they were inconsistent with the only evidence which had been called, as that evidence remained at the conclusion of the testimony before the Tribunal. He asserted that that evidence spoke with one voice that he had a "moderately severe" condition of bipolar disorder This was sufficient, so it was argued, to explain the appellant's improper prescription habits, charging practices and personal conduct with patients. However, the Tribunal, as the body established to determine the facts, had to judge for itself the conclusion to be derived about the nature and degree of the appellant's disorder. It was entitled to do so upon the basis of the written and oral evidence and its impression of the witnesses. It was entitled to take advantage of the expertise available to it in the experts appointed as members of the tribunal. It is possible that the Tribunal was influenced by the initial opinions expressed by Drs Glass and Dyball that no objective evidence could be shown to support a conclusion of bipolar disorder. Certainly, the Tribunal preferred the initial opinions of those witnesses that any such disorder as was present was "mild". As the Tribunal pointed out, that conclusion derives strength from the objective facts which surrounded the appellant's continued conduct of his practice. Although it is true that there were some odd public manifestations of unusual behaviour. But for the most part the appellant just carried on his practice as an apparently normal practitioner. The behaviour complained of, seen in this context, is aberrant. It is open to the conclusion that it manifested badness; not madness. It was also open to the Tribunal to conclude, as it did, that such depressive and manic illness as the appellant suffered was not the real explanation of the complaints which brought him before the Tribunal. The burden of proof Much discussion at first instance, and on the appeal, concerned the burden of proof. There is no doubt that the complainant before the Tribunal bore the onus of establishing that the appellant's conduct proved amounted to "professional misconduct". But, with the aid of admissions and the evidence of patients which was not challenged, the proof of facts warranting that conclusion, on a provisional basis at least, was overwhelming. It then became necessary, if the result of removal were not automatically to follow, for the appellant to displace the inferences, which would ordinarily arise, that his apparent misconduct, as proved, was conscious, deliberate and wrongful. The appellant tried to do this by establishing an alternative explanation for the conduct proved. The onus remained upon the complainant throughout the proceedings to establish "professional misconduct". Having regard to the serious consequences which would flow from that result, the complainant was required to prove the case to a very high level of satisfaction. Briginshaw v Briginshaw and Anor (1938) 60 CLR 336, 361. But it was not the obligation of the complainant to disprove the existence of a bipolar condition alleged by the appellant. Nor was it the obligation of the complainant to prove the precise extent of that condition or its effect on the appellant's behaviour. Such matters were within the case of the appellant. A forensic onus rested upon him to disturb the conclusion that would otherwise flow from the proof of the unadorned facts. No error is shown in the approach of the Tribunal to the burden and onus of proof. The challenge must demonstrate an error of law 8 UNREPORTED JUDGMENTS This Court may only disturb such conclusions if the appellant had showed an error in point of law. The stringency of the requirement established by that obligation is made plain by a number of decisions of this Court, most especially Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139. That case establishes that errors on fact-finding, and even perverse or unreasonable findings of fact, do not constitute errors of law. See Azzopardi at 155. See also Clark v Flannagan (1934) 52 CLR 416; McPhee v S Bennett Limited (1934) 52 WN (NSW) 8, 9; Poricanin v Australian Consolidated Industries Limited [1979] 2 NSWLR 419, 426; Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1, 3, 5. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 (CA). Questions of weight or of the relative significance to be accorded to particular facts, once it has been determined that different conclusions are reasonably open are themselves questions of fact. They do not raise a basis for a challenge on a point of law. See Mahony (above) at 4. The majority in Azzopardi (Glass JA, with whom Samuels JA agreed) adhered firmly to the line of authority derived from the days of widespread jury trial and expressed by Glass JA in these terms (at 155): "Tt is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the findings of a Workers' Compensation judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law. R v District Court of the Metropolitan District Holden at Sydney; ex parte White (1966) 116 CLR 644 at 654." Kirby P, whilst agreeing in the result in Azzopardi, preferred the view that perverse, irrational, or other "extreme" decisions on the facts could evidence an error of law, permitting intervention by a court, limited to correcting such errors. Leave to reargue Azzopardi is refused The appellant recognised the difficulty which the holding in Azzopardi presented. He sought the leave of the Court to reargue the correctness of that decision. No reasons were advanced why the Court should reopen the matter except the suggested error of the decision. The Court declined to give leave to permit the reargument. A number of considerations led the Court to this decision. First, the decision is comparatively recent. Its principle has been applied many times. Secondly, it appears to have attracted the specific support of at least Brennan J in the High Court. See Edelsten v Ward (No 1) (1988) 63 ALJR 345. Thirdly, in appeals from the Compensation Court (formerly the Workers' Compensation Commission) Parliament has now provided, with appropriate limitations, for appeals on factual questions, sometimes with the leave of this Court. See Compensation Court Act 1984, s32 (as amended). No such amendment has been introduced in the case of the Medical Tribunal. Fourthly, that Tribunal is constituted in an unusual way. It includes, in addition to the presiding Judge, medical experts and a lay member. It is at least arguable that the special constitution of the Tribunal makes it inappropriate to afford a full URJ KIRUMBA v WALTON (Kirby P, Mahoney and Handley JJA) 9 review of the Tribunal's fact-finding in this Court. Presumably, the Tribunal has been constituted as it is because of the special qualities and experience which its members, from their different backgrounds, bring to bear in the decisions that are to be made. The Tribunal provides a particular mixture of legal expertise, peer review and lay scrutiny. One of the reasons advanced for adopting a new principle for the review of "extreme" factual decisions is that a change is warranted in the definition of questions of law by the move from jury verdicts on facts to reasoned judicial decisions. Although the Tribunal provides a reasoned decision, it is not that of the judge alone. It reflects the opinions of all its members. Fifthly, the suggested inhibitions of Azzopardi have not proved as burdensome as might at first appear from a superficial reading of the case. Thus Glass JA (at 156) pointed to the exception from the general rule which arises where an error of law appears in an ultimate finding of fact where it can be shown that the primary facts found are "necessarily within or outside a statutory description" and yet a contrary decision has been made. The decisions in Hope v The Council of the City of Bathurst (1980) 144 CLR 1, at 10; and Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138 have provided a useful means, in at least some cases, from escaping the consequences of allegedly "extreme factual decisions where these have involved the application of a statutory test. Furthermore, before the amendment to the Compensation Court Act 1984, a fashion was developed of alleging an error of law in the failure of a trial judge to provide adequate reasons on factual questions sufficient to permit the exercise of the right to appeal on points of law. Sixthly the most fundamental reason for declining to review the holding in Azzopardi is that by no account could the factual decision of the Tribunal in the present case be described as "extreme". The Tribunal's conclusion on the degree of the appellant's bipolar disorder and the extent to which it provided an explanation of his misconduct is by no means "perverse", "contrary to the overwhelming weight of the evidence" or "against the evidence and the weight of the evidence". Nor does it even come close to warranting the accusation that it "ignores the probative force of the evidence which is all one-way" or "that no reasonable person could have made it". On the contrary, the conclusion was clearly open to the Tribunal on the evidence proved before it. It is fully justified by the Tribunal's reasons. Although it is legally irrelevant to say so, in our opinion it is also the right conclusion on that evidence. Does "professional misconduct" import moral turpitude? That conclusion effectively terminates this appeal. The interesting legal question raised by the appellant could only be examined by this Court if the appellant overcame the barrier at the gateway of the Court's jurisdiction, limited as our superintendence is to points of law. That question concerned the meaning of "professional misconduct" in circumstances where actions were proved which were explained by a mental disorder. The appellant alleged that "professional misconduct" in s27(1) of the Act always imported a notion of moral turpitude. To advance that proposition, he relied upon what was said in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, 201. He also relied upon the fact that, in the inclusive definition of conduct amounting to "professional misconduct" within that section, the Act provides in the closing words the following clue as to the genus which is there described: 10 UNREPORTED JUDGMENTS eee or any other improper or unethical conduct relating to the practice of medicine." (emphasis added) The use of the word "other", so it was argued, suggested that the subclassifications in the definition of "professional misconduct" in the subsection were each to be seen as instances of "improper or unethical conduct relating to the practice of medicine". In that way, the notion of misconduct as something "wrongful, improper or unlawful" was preserved by Parliament. The point raised is not without interest and importance. It is difficult at first blush to see a common genus for all of the subclassifications of conduct included in the definition of "professional misconduct" in s27(1) of the Act. Furthermore, there are some indications, including in the Second Reading Speech which introduced the Bill providing the amended definition of "professional misconduct" (and which became the Medical Practitioners (Amendment) Act 1987) that the amendment was aimed to broaden the categories of behaviour which would attract action against a registered medical practitioner. Some of the categories of conduct included in "professional misconduct" in s27(1) of the Act scarcely seem to be instances of "improper or unethical conduct". For example, para (g) "using any certificate, diploma, membership, degree... other than those recorded in the Register in respect of the practitioner" could be breached as a result of oversight in having the qualification recorded rather than any improper reliance upon false or non-existing qualifications. Furthermore, support for the notion that it is not necessary to show "improper or unethical conduct" lies in the range of powers now conferred on the Tribunal under s32R of the Act. Some of those powers (eg the provision of a caution or an order to seek medical or psychiatric treatment or counselling or an order to complete educational courses) seem more appropriate to the proof of facts falling short of "improper or unethical conduct", at least as those words are normally understood. We mention these points simply to indicate the difficulty of the legal question raised by the appellant. He relied, amongst other things, upon the decision of this Court in the case of a legal practitioner whose "irregular conduct" was found to have been "attributable to... [his] mental state. See Robinson v The Law Society of New South Wales, Court of Appeal, unreported, 17 December 1976. However, having regard to the conclusion that the finding concerning the appellant's bipolar condition and its significance for his misconduct was one open to the Tribunal and not subject to review in this Court, the question argued does not arise for decision in this appeal. It can be safely left to another day. Remaining issues in the appeal have no merit None of the other points argued by the appellant has merit. It was claimed, for example, that the Tribunal had erred in law by taking into account, in a manner adverse to the appellant, material on which there was no evidence. Arguments were addressed to some of the observations in the Tribunal in the course of stating its reasons. It was said that these amounted to speculation. We do not agree. In any case, the Tribunal, constituted as it was, was entitled to expose the reactions to the evidence of its expert members. We see no substance in this challenge to the Tribunal's findings. A challenge was also raised based upon the rule of procedural fairness laid down in Browne v Dunn (1893) 6 R 67. It was said that the Tribunal had erred in law in denying natural justice to the appellant by taking into account matters which were not put to witnesses. It is not clear whether this point was finally pressed. It was complained that the Tribunal found that the evidence of Drs MacIntosh and Williams had been coloured by regrets as to their previous failure to help a medical practitioner. It was pointed out that this explanation had never URJ KIRUMBA v WALTON (Kirby P, Mahoney and Handley JJA) 11 been put directly to Drs MacIntosh and Williams. It is enough for us to say that we do not believe that, in all the circumstances of the case, fairness required that this should have been done. Cf Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 586. The remark emerges fairly from a reflection on the evidence of those fellow practitioners of the appellant. In any case, it matters little in the case, looked at as a 0 55()1 whole. The appellant also challenged the Tribunal's failure to find that it was able to suspend the appellant from practice until such time as it was satisfied that his medical condition had stabilised sufficiently to allow him to practice. The appellant argued that, under s321(1)(g)(i) of the Act, the Tribunal may suspend a person from practising medicine for such period as it specifies. It was said that this could be for a period contingent upon a future event, such as review by a Medical Board or a medical practitioner. Whether this is so or not, the Tribunal concluded that the proper order to be made was that provided by s32I(1)(g)(ii) namely a direction that the person's name be removed from the Register. It formed that view believing that "there are indefinite factors relative to the acquisition by the respondent of a controlled mental order'. It is always possible for the appellant whose name has been removed from the Register under s32R to apply to the Tribunal for a review of the order of removal. See the Act, s32V(1)(b). It is clear that the Tribunal considered that that was the correct course to be followed in the instant case, having regard to the imponderables in the appellant's ability to demonstrate reform after the improper behaviour established by the Tribunal's findings and control of the mild bipolar disorder demonstrated by the evidence. It is therefore not necessary in this case to decide whether a power to suspend extends to a period terminated by a specified event. As presently advised, we should be inclined to the opinion that, under the Act, the specified period must be certain and may not depend upon external decisions or events over which the Tribunal itself has no control. The power is given by Parliament to the Tribunal to make an order of suspension. It is the Tribunal which must specify the period of that suspension. The power cannot be delegated or assigned to others. Finally, the appellant contended that in all the circumstances the penalty imposed was inappropriate, unwarranted and too severe. We cannot agree. On the premise of the conclusion by the Tribunal that the mild bipolar disorder was not the explanation - or at least the whole explanation - of the appellant's misconduct, the case was a serious one. Most serious of all was the provision by the appellant of addictive drugs to young persons known by him to be addicted to drugs. Equally serious from the professional point of view was a want of attention to the ordinary medical care of such persons who came to the appellant for help. The associated misconduct of taking cash from such vulnerable persons (in addition to their Medicare assignments) and importuning one of them for sexual favours, clearly represent conduct unacceptable in the medical profession of this State. It is conduct from which the public must be protected by the Tribunal. The order which it made was therefore not too severe in the circumstances. Having said this, we should add in leaving this case, that there was much evidence before the Tribunal reflecting to the credit of the appellant. He was born in Kenya. He had faced various difficulties growing up in that country. When he came to Australia, he married an Australian woman who continues to support him. His practice in Port Macquarie was, at least for a time, busy and successful. He was described by the local Anglican Minister as "a man of compassion, and understanding [who] has always treated us with courtesy and respect. I speak not 12 UNREPORTED JUDGMENTS only for myself and my family in this regard but for my parishioners". The events of these proceedings, and the removal of the appellant's name from the Register of medical practitioners will cause him not only financial loss but shame with his family, his friends and associates in Australia and his extended family in Kenya who still look up to him and depend on financial support from him. He was a skilled medical practitioner bringing his talents to a country town. The complaints found against him must be measured against innumerable instances of caring attention to patients and their families. The appellant's restoration to the register is a matter entirely for the Tribunal, not this Court. However, subject to proof of the restoration of his mental and physical health (or its stabilisation under appropriate treatment) and satisfaction that he has fully understood the seriousness of the complaints proved against him, it would be given to the appellant under s32V of the Act to apply for a review of the order for the removal of his name from the register would be properly considered. Such review must await the passage of a due time and an application. It must depend upon the evidence then presented. In any such application the Court would expect that the appellant would give evidence before the Tribunal, as he did not in the proceedings under appeal. The purpose of the exercise of the Tribunal's jurisdiction is (as it is repeatedly said) the protection of the public. That is its fundamental object. It would be a rare case where a person would be readmitted to practise without appearing and giving evidence before the Tribunal so as to permit the Tribunal to perform the review of the order of removal. One of the more curious features of the failure of the appellant to give evidence in this case was that Dr Delaforce expressed the opinion that, with his bipolar disorder properly stabilised under the medical treatment, the appellant would have been fit to resume practice in three months. Two of the three months passed by during an adjournment of the proceedings. Yet, at a time when (according to Dr Delaforce's view) the appellant would almost have been fit to resume his professional dealings with the public, it was said that he "should not" give evidence. We are not surprised that the Tribunal was unimpressed by the failure of the appellant to give evidence before it. The appellant should be under no misapprehension about the need to present himself before the Tribunal before securing review of the order that will now be confirmed. The challenges to the order of the Tribunal fail. The appeal should therefore be dismissed with costs. Counsel for Appellant: JR Sackar QC and GO'L Reynolds Solicitors for Appellant: Blake Dawson Waldron Counsel for Respondent: TK Tobin QC and TS Hale and MG Sexton Solicitors for Respondent: HK Roberts, State Crown Solicitor