Health Care Complaints Commission v Kristin Scott Stoker [2011] NSWSC 960

Supreme Court New South Wales

Medium Neutral Citation: Health Care Complaints Commission v Kristin Scott Stoker [2011] NSWSC 960 Hearing dates: 25/07/2011 Decision date: 25 July 2011 Jurisdiction: Common Law - Administrative Law Before: Brereton J Decision: Set aside decision of Chiropractors Tribunal of New South Wales. Upon Kristin Scott Stoker undertaking to the court that he will agree to the imposition by the Chiropractor's Board on his entitlement to practice of a condition for a period of two years from 25 August 2010, that when assessing or treating any female patient under 45 years of age there must be present in the treatment room for the duration of the visit an adult female person, unless the patient is accompanied by any person or guardian who is male and the patient consents to that person being present, dismiss the appeal from the Chiropractor's Tribunal of New South Wales decision on Complaint One. Dismiss the appeal from the Chiropractor's Tribunal of New South Wales decision on Complaint Two. Uphold the appeal from the Chiropractors Tribunal of New South Wales decision on Complaint Three. In lieu thereof, pursuant to (NSW) Health Practitioners Regulation National Law (NSW) No 86a, s 162A, substitute a finding that in that respect Kristin Scott Stoker was guilty of unsatisfactory professional conduct. Determine that it would be inappropriate to exercise any power under Chiropractors Act , s 50 and s 51, in respect of that finding. Order that the Health Care Complaints Commission pay Kristin Scott Stoker's costs of the appeal. Catchwords: MEDICAL PROFESSION - Appeal from decision of Chiropractors Tribunal on point of law - powers of Tribunal conditional upon finding chiropractor convicted of a criminal offence and circumstances of offence such as to render chiropractor unfit in the public interest to be registered - Tribunal did not find chiropractor so unfit - no power to impose condition - error of law - conditions imposed on professionals - conditions do not necessarily entail professional unfit to practice - conditions may be imposed to secure and maintain public confidence in the profession MEDICAL PROFESSION - Whether chiropractor not of good character - error of law established only if tribunal bound to conclude on facts chiropractor not of good character of if it misapprehended its task - failure by chiropractor to notify Board of conviction within requisite time - notification only one working day late - cannot inform judgment not of good character - impact of criminal convictions - convictions do not necessarily mean professional unfit to practice - crime committed at lower end of scale of criminal wrongdoing - failure of chiropractor to admit wrongdoing before Local and District Courts and Tribunal - many reasons people do not admit wrongdoing - Tribunal took matter into account - no error of law. MEDICAL PROFESSION - Unsatisfactory professional misconduct under (NSW) Chiropractors Act s 25 - notification to Chiropractors Board of criminal conviction one day late - technical breach of Act constituting professional misconduct - triviality of breach entails no need for consequential order. Legislation Cited: (NSW) Chiropractors Act 2001, s 21, s 25, s 26, s 50, s 51 (NSW) Crimes (Sentencing Procedure) Act 1999, s 10 (NSW) Health Practitioner Regulation National Law (NSW) No 86a, s 162, s 162A, cl 4(3) Sch 5A (NSW) Health Practitioner Regulation Amendment Act 2010 (NSW) Summary Offences Act 1988, s 5 Cases Cited: 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 N.E.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) at 176 CLR 256 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Category: Principal judgment Parties: Health Care Complaints Commission (plaintiff) Kristin Scott Stoker (defendant) Representation: Ms S McNaughton (plaintiff) Mr K Dailly (defendant) Ms Karen Mobbs (plaintiff) Collins and Thompson Solicitors (defendant) File Number(s): 2010/316872