Gorman v Health Care Complaints Commission & Anor [2003] HCATrans 508 (2 December 2003)

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Gorman v Health Care Complaints Commission & Anor [2003] HCATrans 508 (2 December 2003)

Last Updated: 12 December 2003

[2003] HCATrans 508

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S15 of 2003

B e t w e e n -

DR RICHARD GORMAN

Applicant

and

HEALTH CARE COMPLAINTS COMMISSION

First Respondent

MEDICAL TRIBUNAL OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 2.03 PM

Copyright in the High Court of Australia

DR R.F. GORMAN appeared in person.

MR K.M. CONNOR: If the Court pleases, I appear for the first respondent in the application. (instructed by the Health Care Complaints Commission)

GUMMOW J: Yes, Dr Gorman.

DR GORMAN: Your Honour, my task today is not to win this appeal, but rather to get leave to appeal, and I have to convince you that that is a reasonable proposition.

GUMMOW J: That is correct.

DR GORMAN: On the surface, the matter before you is a very small cheese, really. I have been given a reprimand, I have been given a conviction of unsatisfactory professional conduct and there is a prohibition preventing me from manipulating the spines of children under the age of 16 years, on the grounds that they are unable to give informed consent.

GUMMOW J: You had some success in the Court of Appeal, did you not, on the conditions?

DR GORMAN: Yes, I did, your Honour.

KIRBY J: It was quite a lot of success, really.

DR GORMAN: The Court of Appeal was extremely good to me, your Honour, and it is really - - -

KIRBY J: But are you not complaining that they were biased against you?

DR GORMAN: Well, as it goes on, I am afraid, your Honour, this is a very serious matter, because - - -

KIRBY J: You did better than most barristers do before the Court of Appeal.

DR GORMAN: Thank you, your Honour. The thing is, your Honour, that the reprimand is of no importance, because I have already got professional misconduct for the same complaint. The complaint against me was that I have a dissenting medical philosophy and they gave me a professional misconduct in 1988 and they gave me another one in 2001 – well, non-satisfactory, so, really, while I have one, the other one does not matter. The reprimand is a slap on the wrist; nothing, no pain, nothing. It was just something that the court did to me to make my character worse, but obviously it is a court I do not respect and hence it does not mean anything to me.

Now, the prohibition of treating children under the age of 16, that is of no significance either, because all chiropractors, medical practitioners other than myself, do not have this restriction against them. It is totally discriminatory. So if I wanted to get children treated, I.....so why am I here, if I do not.....Well, I am here because there are a lot of problems associated with this that have immense public importance.

The High Court is a repository of wisdom, commonsense, logic and probity, and this is where this matter comes, because I have already been brought up before the courts twice. My problem has been, I have not hurt anybody, there has been no complaint that I have injured anybody, certainly, a person died in relation to a treatment that I recommended, but I was not present at the time. I did go in and help with the resuscitation, but I was not present. So that in the course of this whole 17 year saga, there has been no complaint against me that I have hurt anybody. The complaint against me is that I have a dissenting medical philosophy.

KIRBY J: We cannot sort that out. We are not arbiters of medical philosophy. That is not our - - -

DR GORMAN: The problem is, your Honour, that the High Court is the only place that can sort this out. They certainly cannot sort it out in the Court of Appeal or the Supreme Court. The reason I am here is under section 35A of the Judiciary Act, and I am saying matters of jurisdiction, which is a High Court problem – the matters of general jurisdiction first and then matters of federal jurisdiction. I have my summary of what I am going to say. Would you like that, your Honour?

KIRBY J: Yes.

GUMMOW J: Is this in addition to what you had before?

DR GORMAN: Well, I have just.....a memorandum, your Honour, just so that you understand what I am talking about.

KIRBY J: It would have been better if you had tried to hand this up earlier, we could have read it over lunch with the sandwiches.

DR GORMAN: Sorry, your Honour.

KIRBY J: Never mind. We will try to read it as you are going on.

DR GORMAN: So we are dealing with the matter – under section 35A, the Court has responsibility to deal with matters of points of law in relation to courts and within courts and the public importance part of it. To deal with the aspects of that, there is a general jurisdiction and a federal jurisdiction. If we go to the “General Jurisdiction”, if we go to 1, what I am saying is that the Medical Tribunal made a decision in my case that was based upon the effect that the decision would have on the commercial and political concerns of the medical profession.

I am saying it was an abuse of the privilege of self-regulation and, that being the case, this is the Court for it to be dealt with. Whether the Court wishes to deal with it, that is another matter. Just going quickly, there are other things. The Medical Tribunal made the point that everybody has to have orthodox treatment, despite whether that treatment has been ratified as scientific or not. That was a judgment against me. I did not give orthodox treatment for five days to a patient. If I have given orthodox treatment, the mere fact that I have manipulated a patient’s spine, or whatever else I did, would not have mattered. Does it have that jurisdiction? I do not think it does. Does the Medical Tribunal on its own volition have the authority to vary charges?

Now, the charges relating to spinal manipulation were specifically removed from the action and yet they punish me, or they brought up their conviction that a normal doctor in this situation would not have manipulated the spine, but would have conducted ordinary medical treatment.

KIRBY J: Would have continued with pharmaceutical therapy.

DR GORMAN: Pharmaceutical therapy, your Honour. Now, if you jump down to 5, your Honour, the reason - - -

KIRBY J: I understood you did not contest that you ought to have continued the pharmaceutical therapy.

DR GORMAN: I certainly contested that, your Honour, because that was an important thing, but I pointed out, you could not even warn the doctors over the short time, five days – you would not have even got an appointment with an ordinary ophthalmologist. If you are dealing with a glaucoma illness which hurts people over decades, you would not have even got in, and here I am being punished because I did not do treatment for five days. I mean, it was ridiculous, your Honour. So I did contest it.

If we go down to 5 – we jump 4 for the moment – the reason that I was able to bring spinal manipulation in was because I brought up a section 92 arrangement, because there we were at the court, it seemed sensible to bring the two up together and they decided that they would join the two actions. Now, this is in the court next door, your Honour, this morning – Pearl, dealing with five separate cases, joined together no doubt, because they were all under the same people against different defendants, as it were. But that was appropriate because the Pearl people were always on the left-hand side of the ledger; they were not on the right hand. Here, I have a situation were I was a defendant in one action and a plaintiff in the other action.

Now, it was quite ridiculous to try and connect those two together, and the outcome of it was that they used information from where I was the plaintiff to use against me in the case where I was a defendant, because they were not allowed to discuss spinal manipulation in the defence case, because it had been specifically removed. So they drew the information from the other case and put it in there. Well, that was unfair.

Now, if we go to 4, your Honour, the Medical Tribunal, does it have the jurisdiction to countermand the decisions of previous medical tribunals? Now, in 1988 the Medical Tribunal said, “Look, if adult persons wish to have Dr Gorman’s treatment, we are not going to stop them”. Then, in 2001 the Medical Tribunal, without being asked to review that or anything, decides that these people cannot have the treatment. It is the same treatment. One case, the Medical Tribunal says, “Yes, you can have it” and the other says, “No, Dr Gorman cannot give it to you”. So that, I felt, was – I do not think it had the jurisdiction to change the thing, unless there was an appeal, a review, specifically related to that in the Medical Tribunal which could occur, they cannot just come up and change things without any application for appeal to be made.

Now, to follow on, 5, does the Medical Tribunal have equal powers with the Supreme Court to authorise or prohibit medical treatments in persons unable to give informed consent? Now, the Medical Tribunal, in 1988 said that I was not to manipulate children under the age of 16 because they were unable to give informed consent. Now, if we extend that, that means that the Medical Tribunal had taken on anything to do with informed consent on a minor. You do not have to go to the Supreme Court, you can just go to the Medical Tribunal and they will make a decision.

That appears to me way beyond the jurisdiction of the Medical Tribunal. It is the jurisdiction of the Supreme Court, and even the Supreme Court does not use that jurisdiction often; it is in what they call “special cases”. Marion’s Case said that if there is a question of sterilising an incompetent female, that certainly has to go to the Supreme Court and, certainly, the Medical Tribunal should not be encroaching on the Supreme Court’s powers. Now, the “Federal jurisdiction”, under page 3, No 7 - - -

GUMMOW J: We think you are not on strong ground there.

DR GORMAN: Not on strong ground – where is that, your Honour?

GUMMOW J: Federal jurisdiction.

DR GORMAN: Well, you know, section 51(xxii) certainly says, the rights of parents. Now, we know that parents - - -

GUMMOW J: That is a power to make laws; it is not an exhaustive exclusion of the power of the States to make laws. It is a power of the Commonwealth to make a law. You have to find a law, and then you have to find a State law which conflicts with it. Do you see what I mean?

DR GORMAN: Well, certainly, the Medical Tribunal may take upon itself that responsibility, anyway, your Honour. I think that the rights of parents to make a decision about whether people should have a tonsillectomy, whether they should have a cardiac bypass – these are on minors – whether they should have a thing, there is still the proprietary position of parents, unless some big change is that spinal manipulation, a procedure that has a wonderful safety record, why they should usurp the rights of parents and the Medical Board saying, “No you cannot have your child done, if you want to have your child done”. And, second, the Medical Tribunal does have jurisdiction to make rules relating to what happens to people in other States - - -

KIRBY J: Justice Sperling said, at the end of his reasons – in which the other members of the court agreed, I think – that he was not reflecting on the capacity of parents to give consent for a child. So he was reserving that position for parents to agree to appropriate medical treatment that they considered was appropriate and necessary for the child.

DR GORMAN: In view of those comments, your Honour, why did he not let me off the section 92? That is the point. The section 92 was up for debate and I had formally taken it to the Medical Tribunal - - -

KIRBY J: They found that there was a basis in fact and law upon which the Tribunal could act as it did. The Supreme Court is not just a general appeal court of review. It has to examine whether a mistake has been made in the Tribunal.

DR GORMAN: Your Honour, what happened was, in the Tribunal I brought up this section 92 and the wording was that, “Because we are going to put new conditions on Dr Gorman’s licence to practice, we are therefore not going to take any of the old ones off”. Now, that was not to do with whether the old one was appropriate or not; it was to do with because they were putting new ones on, do you understand?

KIRBY J: I hope you will leave enough time to develop, if you can, whatever you have to say about the so-called bias of the Court of Appeal, because that is a very serious allegation and I could see no basis at all for that. You had a win in the Court of Appeal.

DR GORMAN: I think, just to finish off on 8, your Honour, if you take what happened in the Ancillary Book and the affidavit that I put in, where they immediately took the rules that were associated with the conditions that were put on my licence in 2001 by the Medical Tribunal and they transferred them to Victoria. Now, if you take that into account, if I was a paedophile, or if I was abusing patients, if I was sexually assaulting patients, well, yes, by all means take it across, because then it only refers to me. No other reputable doctor in Victoria is going to do anything because I have been a paedophile, or I have been sexually abusing patients, or I have been stealing money from HIC or something like that.

KIRBY J: There is absolutely no suggestion of any of this.

DR GORMAN: No, but what I am saying to your Honour, when they took that question across, that would affect other doctors. Not me; other doctors. So.....if you do that, you are going to get.....so that it is drawn across State boundaries. That is the point I am making there.

Now, the administration of justice. I am saying that the Medical Tribunal was corrupt. Now, that is a matter for the High Court. Whether the Medical Tribunal was corrupt or not, what I am saying is that the Medical Tribunal had formulated a position that would end up what was going to be said. At the end of their deliberations, they would make this decision. Did they have a motive? An immense motive. They had control of this court, they had the immense amount of money involved in – if my philosophy came forward, there would be a question of drugs in a lot of cases would not be appropriate. They had the opportunity.

The courts that I have been through, as you will see from my book, I have been to the Supreme Court on no less then five separate occasions, saying that there was a problem here with the medical profession not talking about other forms of medicine that were important, and, in each case, this bias that was out against this idea – you see, that is my evidence for the bias. It was virtually impossible – if you take Justice Dowd’s judgment, that is where the bias was very obvious, because I asked him, probably unreasonably, I suppose, to listen to the evidence that spinal manipulation cured certain illnesses and then make a declaration. He said, “I cannot make a declaration on that; that is a matter for the medical profession”. I am saying, “No, come on you guys, the courts have the ability to make - - -

KIRBY J: Yes, but what is your complaint against the Court of Appeal? They appear to have dealt with you very correctly.

DR GORMAN: Well, the same bias was there, your Honour. They did not go far enough. They should have taken the reprimand off, they should have dealt with the - - -

KIRBY J: Where is the bias?

DR GORMAN: Well, why did they not do it, your Honour? They did not, and my estimation is - - -

GUMMOW J: That is not bias, I am afraid.

DR GORMAN: Well, sorry, your Honour, but my estimation is that they did not do it because they did not want to offend the Medical Tribunal. They did not want to because of the - - -

KIRBY J: Why would they - - -

GUMMOW J: Why are we getting.....about that?

DR GORMAN: Sorry, your Honour, I can only bring the points that I see to your attention and whether you deal with them – that is sort of up to you. Now, we get to the – that is the end of - - -

KIRBY J: There is a bit of a tendency nowadays, and not just with other professions, but for the legal profession, to throw around this accusation of bias. I mean, a mistake or an error is one thing, but to accuse a judicial officer of bias is a very serious thing. It is like saying that the judge has pre-determined the matter.

DR GORMAN: I agree with you entirely, your Honour; it is a very serious matter. If there had not been millions of people damaged worldwide by it, then it would not be fair to bring it up, but there are millions of people worldwide, because what has been broken down in the Medical Tribunal is a philosophy of medicine that is being discriminated against, that has been denigrated, by me, because I am the main protagonist of it. Denigrate me, you denigrate the idea. I do not know how many seconds I have left, your Honour.

We are talking about – in section 35A(b), there is the “administration of justice” and there are three aspects of that. Here we have a Medical
Tribunal – anyway, if we go from my notes. Law and justice are not the same. Everybody accepts that. The process of the law should provide justice, and here I am saying that the process of the law intentionally produced injustice. I feel that the High Court should say, well, we have all these people injured, we should do something to turn the tide to make it a little bit more difficult for the Medical Tribunal to do these sorts of harms to the community. Your Honour, thank you.

GUMMOW J: Yes, thank you, Dr Gorman. As indicated earlier, there has been no appearance for the second respondent but the Court holds a certificate from the Deputy Registrar that she has been informed by the second respondent, which is the Medical Tribunal of New South Wales, that that body submits to any order the Court may make, except as to costs. As to the first respondent, we do not need to call on you, Mr Connor.

The applicant, a medical practitioner, has for some years been engaged in a scientific dispute within his profession concerning the effectiveness and medical advisability of spinal manipulation in the treatment, inter alia, of ophthalmic disorders. That argument lies behind his extended proceedings before the Medical Tribunal and the courts of New South Wales. However, it is peripheral to the legal issues which the applicant seeks to bring before this Court. The applicant has represented himself in this application, as he did before the New South Wales Court of Appeal.

In that court Dr Gorman had a partial success, securing an order quashing the decision of the Medical Tribunal of New South Wales that certain conditions be imposed on his right to practise medicine. Otherwise, his appeal to the Court of Appeal was dismissed. There was no cross-application by the Health Care Commission of New South Wales for special leave to challenge the measure of Dr Gorman’s success in the Court of Appeal. As I have just indicated, the Tribunal, which is the second respondent, submits to the orders of this Court.

Dr Gorman’s written and oral submissions before us have ranged broadly. They included constitutional submissions supported by a notice given under section 78B of the Judiciary Act 1903 (Cth). These constitutional submissions are without substance. They confuse the grant of legislative power in the Constitution to the Federal Parliament and the making of laws by the Federal Parliament pursuant to such power. The other submissions appear to concern allegations of jurisdictional and procedural abuse, of corruption, bias and wrongdoing in the court and in the Tribunal below, of unlawful censuring of information said to be critical to the community and of the alleged failure to resolve differences of opinion in the Medical Tribunal.

The Court of Appeal decided that the finding of unsatisfactory professional conduct was open to the Tribunal on the material before it. In our view, the Court of Appeal was correct in so concluding. No occasion arises to consider the constitutional or other questions which Dr Gorman has sought to raise before us today. There is, in any case, no proper foundation for those allegations, whether in law or in fact. In particular, on the material before us, we would reject the applicant’s proposition that the Court of Appeal in any way was biased against him. Rather, as we see it, the reasons and orders of that court demonstrate the exact opposite. Special leave to appeal is refused and refused with costs.

AT 2.25 PM THE MATTER WAS CONCLUDED