A KANGAROO COURT

 

MR M GORTON

 

A Panel Member

 

Dear Reader, on the assumption you have read the other Chapters under “ A Kangaroo Court,” perhaps we can examine his roles in more detail :

 

(a)    A quick examination of the Transcript (Hop into Kangaroo Court) should reveal to you that Mr Gorton swiftly took over control and direction of the Hearing. He acted, for most of the time, as a de facto Chairman.

(b)   The extent of his control over the proceedings may be deduced from the Chart below, which sets out the number of speaking points in the Transcript up until the Panel returned with the Finding :

 

      CHART – Speaking points

 

From this, we can make the following observations :

                                                                       i            Mr Gorton dominated at all times

                                                                     ii            Dr White, the only Medical Specialist on the Panel, and the one most approximating the Defendant in medical qualifications, seems to have contributed nothing that was detected by the microphone within the Hearing

                                                                    iii            We may safely assume that Mr Gorton dominated in the recesses and in the drafting of the Reasons.

(c)    Who was/is Mr Gorton ?

                                                                       i            I understand that he was/is a lawyer without a medical qualification

                                                                     ii            He was not a Member of the Medical Practitioners Board of Victoria. Accordingly, he was not in a good position to understand the Board’s approaches to matters generally, medical issues and possibly parity.

                                                                    iii            He was appointed, probably by the Officer overseeing the Formal Hearing by the Board. My understanding is/was that Mr John Smith had that rôle.

                                                                   iv            He was drawn from a “locum tenens” list appointed by the Governor-in-Council. Just how those on that list are appointed is unclear (see elsewhere on the website). Mr Smith would very likely have had some influence over this step.

                                                                     v            In general, the policy, that should be followed, is that nominations from the Governor-in-Council’s list should not be used unless there are no Board Members available, or that there is a need for some special expertise. The latter would not seem relevant.

                                                                   vi            A glance at other Hearing indicates that he may not have participated in many (if any) other board matters before 2006.

(d)   Performance

                                                                       i            As noted earlier, he dominated the Hearing throughout :

                                                                     ii            He speedily took over as the de facto Chairman

                                                                    iii            He maintained that position for most of the time

                                                                   iv            He acted as Chief Inquisitor

                                                                     v            He was overtly hostile, particularly at first

                                                                   vi            He maintained the “black and white” legal view of the issues throughout and was unable to accept that there may have been an entrapment campaign

                                                                  vii            He was unprepared to accept that the changes in the Drugs & Poisons Unit’s conduct after the Magistrates’ Court date carried any significance, and that this change could not be assessed for a year or so afterwards, meaning that it could not be used as a defence in the Court.

                                                                viii            He presented clues, that may indicate that he knew (in advance of the Hearing) of the attempt by the Office of the Board to set me up regarding patient DF*, and tried to block me reading her Affidavit                             *see A Base Board

                                                                   ix            He applied pressure to speed up the Hearing, culminating in the Panel withdrawing before I had an opportunity to submit my written Submission (planned ??)

                                                                     x            He, and the Panel, were unable to provide medical guidelines for practitioners to follow, in the event of similar harassment from the Drugs & Poisons Unit.

                                                                   xi            He demonstrated those sensory and cognitive losses seen when bias is suspected

(e)    As the presumed dominant force in the drafting of the Reasons :

                                                                       i            There seemed a dissociation between the quoted extracts and the conclusions supposedly drawn from them

                                                                     ii            The Reasons was, generally, devoid of “reason.”

                                                                    iii            The Reasons, having the “black and whitelegal emphasis consistent with Mr Gorton’s significant influence became, effectively, a repeat of the Magistrates’ Court outcome – Double jeopardy, but with additional sanctions: The Court considered the breaches in relation to the public’s expectations, whereas the Board should consider matters in relation to a doctor’s practice of medicine. Form filling, applications and filing is not medical practice (in terms of direct patient contact, advice and treatment). It is clerical work associated with medical practice. (It should not be considered in the same light as, for example, sexual indiscretions with patients.) On this basis, the Panel, supposedly considering medical practice (patient contact), should have had a reduced sensitivity, especially since the public’s perception had been settled by the Court. This did not happen – if anything, there was heightened sensitivity.

                                                                   iv            He was unqualified, and unwilling, to consider medical issues and dilemmas

                                                                     v            There is no clear indication that the medical members of the Panel had any significant influence over him and how he performed

                                                                   vi            The Reasons provide no guidelines for medical practitioners, when confronted by the dilemmas created by the actions of the officers of the Drugs & Poisons Unit.

Other issues worth noting :

                                                                       i            The inability of the Panel to make decisions without input from Mr John Smith

                                                                     ii            The making of a Finding without the Panel having received my written Submission (to which there had been many references)

                                                                    iii            The failure to provide the Reasons within the required time interval – an “oversight (?*)” and a breach of the Medical Practitioners Act.                  *Deliberate ? !

                                                                   iv            The supposed significance of the claimed “lapses” after the Interview of 17/10/2002. One was falsely represented, the other followed from the “loss” of a Permit application which, in context, could be predicted

                                                                     v            The failure of the Board to grant a deferment for the Hearing[1], given that the referral came after the referral for the other Hearing and it appeal (the Board’s Hearing of 2005, leading on to the VCAT Hearing of 2006).

                                                                   vi            The failure of the Panel to grant an adjournment of the Hearing (for the same reasons as in v. above).

                                                                  vii            My understanding of the purpose for having non-medical participants in activities of the Board was to provide greater transparency for the public. Such public representatives would have been expected to be largely observers, with the opportunity for occasional comments and vote. I doubt if anyone involved in the legislative process envisaged that a member of the public (non-medical) and not a Member of the Board would dominate an Hearing, to the degree of usurping the Chairman and run the Hearing, leaving the medical members as the observers with occasional comments and vote.

 

 

Questions for you, dear reader

 

(1)               Do you really believe that the Panel conducted itself as originally intended under the Act ?

(2)               Do you believe that Mr Gorton was biased ?

(3)               Do you believe that the Panel was biased[2] ?

(4)               Do you believe that the Drugs and Poisons Unit conducted an entrapment campaign with the intention of having Charges and a conviction made against me, to bring me before the Board ?

(5)               Do you believe that the Office of the Board was involved in the campaign ?

(6)               Do you believe that the Panel should have provided guidelines for other doctors confronted with the same types of dilemmas ?

(7)               Do you believe that the Office of the Board was corrupt ?

 

 

Copyright © MA Traill, November 2007


 

[1] Forbes JRS. Justice in Tribunals, 2002. 2nd Ed. Federation Press, NSW. 10.26, p.129. “A reasonable request for additional time should always receive serious consideration . . . “

[2] Ibid. p. 221, Chapter 15 “The Twin Pillar: the Rule against Bias.” [15.2] “One Biased, All Biased