Rogue doctors and the good character test

Jun 20, 2021

With the death of former medical practitioner, Geoffrey Edelsten, one can predict that there will be commentators and journalists who will seek to laud him. Here is a different view.

When young men and women graduate in medicine and are registered as medical practitioners for the first time, their average age is around 23 to 25 years or older for graduate entrants. Applicants for registration are obliged to reveal any criminal convictions and are expected to meet the requirements of good character. Not surprisingly, at initial registration, these young applicants rarely fall at the hurdle of criminal conviction or bad character.

Those few doctors of bad character are usually only recognised through their unprofessional conduct in the years after graduation. This small group of doctors can create massive problems for society and regulators. Some such as Dr Harold Shipman in the UK and Dr Michael Swango working in the US, and later in Africa, actually murder their patients.

While Australia has been free of murderous doctors, there have been a few who have been involved in criminal activity, or Medicare fraud and over-servicing, or in repeatedly harming patients through poor judgement and lack of skill. They are difficult for medical boards, tribunals and courts of appeal to handle. They usually lack insight into their performance and have little sense of morals. They have a negative effect on the overall reputation of the medical profession. Frequently, they have misused their position to become wealthy and do not hesitate to spend money on prolonged legal actions to avoid deregistration and later to seek re-registration. The legal issue to be determined when such a person is applying to be returned to the register is usually whether to believe their claim to have reformed and to now be of good character.

It is worth emphasising why being of good character is so important for doctors. This was explained clearly by the NSW Medical Tribunal in 2004 when it stated:

“Medical practitioners are in a highly privileged position of trust. They receive confidences not only as to their patients’ physical and mental difficulties, but as to their most personal and private secrets. On occasions they are the recipients of information about a patient’s family affairs, his or her domestic and marital relationship and financial status. Accordingly they must be, and must be seen to be, honest. They must possess not only medical skills but the highest moral and ethical standards. To be persons of probity whose integrity is unquestioned”.

During my 19 years with the Medical Board of Victoria, I was involved in the Board’s efforts to deal with three such troublesome doctors, all of whom became of interest to the media. As a result, their stories are reasonably well known, but for the moment I will focus on the recently deceased Geoffrey Edelsten.

The best account of the less reputable aspects of the medical career of Edelsten is publicly accessible as it was written as the reasons for decision by the NSW Medical Tribunal chaired by Justice McGuire in 2004 when Edelsten’s application for restoration to the NSW medical register was rejected.

Edelsten graduated from the University of Melbourne Medical School and was first registered in Victoria in December 1966. He did his residency at the Royal Melbourne Hospital in 1967 where contemporaries recall that much of his energy went into managing a local pop group. He then worked as a rural general practitioner in NSW and Queensland before moving to Sydney where he established a chain of general practices. It was in this setting that he first ran into difficulties, initially over his billing practices, and was subject to investigation by the Health Insurance Commission (Medicare).

Soon he was in deeper trouble and at an inquiry conducted by the NSW Medical Tribunal in 1988, he was found guilty of allegations including seeking the assistance of a ‘professional hit man’ to deal with a former patient who was said to be harassing him, inducing doctors in his employ to engage in ‘over-servicing’, engaging in improper fee-sharing arrangements (‘kick-backs’), falsely claiming Medicare rebates for treatment given by untrained staff, and allowing an untrained person to undertake laser surgery in his practice. He was deregistered and ordered not to reapply for registration for ten years. Edelsten appealed this decision but the appeal failed.

However, Edelsten was still registered in Victoria and he moved to Melbourne where he remained registered until September 1992. In July 1990 he faced a criminal trial in NSW for allegations of soliciting an assault and conspiring to pervert the course of justice. The latter charge related to his provision of laser treatment to Christopher Dale Flannery and issuing a medical certificate that led to Flannery being able to avoid appearing before a certain judge. Edelsten was found guilty of both charges and as a result, spent twelve months in gaol.

In 1988, the Victorian legislation did not give the Medical Board power to act on his NSW deregistration. In order for this to happen, the legislation needed to be amended, so for the time that Edelsten was in gaol, he was registered in Victoria. Finally, in 1992, the Medical Board of Victoria was able to hold an inquiry into Edelsten’s conduct, directed at his conviction for serious crimes and whether his character was such that he should remain on the Victorian register. The Board found against him and his name was removed from the Victorian register on 4th September 1992. Edelsten appealed this decision to the Supreme Court of Victoria but his appeal was rejected. The next day he applied for re-registration. The application was rejected.

Over the next decade and a half, he repeatedly sought to be restored to the medical register in both NSW and in Victoria. The issue at stake in every application was the question of his character. In applications of this type, the onus of proof is on the applicant; i.e. Edelsten needed to provide evidence that he had learnt the error of his ways, was repentant and had reformed. The hurdle Edelsten faced was succinctly described by the NSW Medical Tribunal in 2004 in the following manner: “Success in this application depends upon the Applicant satisfying this Tribunal on the balance of probabilities that he has overcome the defects in character which led to his professional misconduct and that he is now a fit and proper person to be registered as a medical practitioner.”

The Tribunal then favourably quoted a 1966 opinion of a higher court that:

“Reformations of character and of behaviour can doubtless occur, but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind as occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.”

In NSW his first application for restoration to the register was dismissed by the NSW Medical Tribunal in 2001, with a ruling that he not apply again for two years. In 2003, he applied again. His application was denied by the NSW Medical Tribunal in a 54-page decision handed down in January 2004. The grounds for denial included his demonstration of “a lack of frankness and honesty in his evidence; that he has not discharged the onus cast upon him of establishing that he has overcome the defects in his character which led to the dishonest and dishonourable conduct resulting in his removal from the register; and that he has not rehabilitated himself so that he is now a person of good character for the purpose of practising medicine, qualified and entitled to be restored to the register.”

Indeed, the Tribunal stated,the current application is so unmeritorious as to border on the frivolous.” He was ordered not to make any further application for four years.

The Tribunal also recorded:

“It is difficult to conceive of more serious misconduct than the Applicant demonstrated in seeking to obtain the assistance of a man he knew to be a professional stand-over man and murderer to intimidate by threats or violence a former patient. That conduct alone reflected the gravest defects in character. The further matters dealt with by the 1988 Tribunal involved gross dishonesty whereby he sought to unjustly enrich himself. Additionally he demonstrated serious disregard for the physical welfare of his patients by permitting and enabling a person not a registered medical practitioner to perform laser surgery.”

In a summary that cannot do justice to the NSW Tribunal’s meticulous documentation of Edelsten’s “lack of frankness and honesty”, these are the general areas that the Tribunal remarked upon holding himself out to be a doctor when he was deregistered, not being frank with the Tax Office, failure to make reasonable efforts to pay outstanding court fees and fines, failing to fully inform his bankruptcy trustee of his debts, giving misleading information to an earlier hearing by the NSW Medical Tribunal, and giving false and misleading information about a company in which he was the sole director.

Having outlined in some detail Edelsten’s “lack of frankness and honesty”, the Tribunal concluded:

“this Applicant has proffered so many untruths and deliberately misleading statements on so many occasions prior to him coming before this Tribunal and in the proceedings before it, for his application to have any prospects of success. It was incumbent upon him to establish beyond question that he was at last being absolutely frank and honest. He completely failed to do so as this Tribunal has no hesitation in finding that he continued to either deliberately lie or to attempt to seriously mislead it.”

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