HEALTH CARE COMPLAINTS COMMISSION v LITCHFIELD [1997] NSWCA 264

[1997] 41 NSWLR 630

HEALTH CARE COMPLAINTS COMMISSION v LITCHFIELD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and HANDLEY JJA 1 July 1997, 8 August 1997

[1997] NSWCA 264 PROFESSIONS — DISCIPLINARY PROCEEDINGS — PURPOSE OF

RES JUDICATA — CRIMINAL AND DISCIPLINARY PROCEEDINGS — AUTREFOIS ACQUIT — DOUBLE JEOPARDY

The respondent doctor was the subject of complaints before the Medical Tribunal that he had engaged in inappropriate sexual conduct towards three female patients. He was suspended from practice for nine months and ordered to submit to a psychiatric assessment to be referred to the Medical Board. For twelve months after his suspension the doctor was to practice in a position approved by the Board. On appeal the Commission sought an order that the doctor's name be removed from the Register. The doctor had been acquitted on criminal charges arising from the same facts as the third complaint and he cross appealed contending that the disciplinary proceedings in respect of that complaint should have been dismissed because they involved double jeopardy.

HELD: By the Court, dismissing the cross appeal and allowing the appeal: (1) The plea of autrefois acquit was not available to the doctor in the disciplinary proceedings. Although both the Director of Public Prosecutions and the Commission are servants or agents of the Crown there was no identity of parties to establish a res judicata estoppel. Re Mulligan Ex Parte Isidoro [1979] WAR 198 doubted and distinguished; Wynyard Investments Pty Ltd v Commissioner for Railways (1955) 93 CLR 376 applied; Haines v Tempesta (1995) 37 NSWLR 24 referred to. (2) Because of the different onus in civil and criminal proceedings an acquittal does not prevent disciplinary proceedings arising out of the same facts. Helton v Allen (1940) 63 CLR 691, Redlek v McElroy (1965) 112 CLR 517 applied; Papadimitropoulos v The Queen (1957) 98 CLR 249 referred to. (3) The Act contemplated that disciplinary proceedings could be brought before or after criminal proceedings and regardless of their outcome. Medical Practice Act 1992, s56 considered. (4) The purpose of proceedings before the Tribunal was purely protective and no element of punishment was involved. The Tribunal erred in treating the stress on the doctor from the criminal trial and the disciplinary proceedings as a relevant consideration. Clyne v NSW Bar Association (1960) 104 CLR 186 and NSW Bar Association v Evatt (1968) 117 CLR 177 applied. (5) The Tribunal also erred in relying on the lapse of time since the earliest complaint and the delay since the last complaint. The Tribunal could not assume that the doctor had become a reformed person. Ex Parte Tzirtiolis (1966) 67 SR (NSW) 448 applied. (6) The order that the doctor submit to a psychiatric assessment during the suspension was inappropriate because neither the Board nor the Commission could take appropriate action if the assessment showed the doctor was unfit to practice. (7) The paramount duty of the Tribunal and the Court in cases such as this was to protect the public, and particularly female patients, from the abuse by doctors of the power they possess over patients in the course of their practice. Richter v Walton (Court of Appeal, 15 July 1993, unreported) overruled.