| Criminal Court |
HCCC and Medical Board |
| Rules Of Evidence |
No Rules Of Evidence |
| Presumption of innocence and complaint to be proved.
|
Complaint has to be assumed to be true unless it can be ‘disproved’
|
| Justice is justice for all. |
Protection of the public |
| Information as Proof |
|
| Absence of proof or reasonable hypothesis consistent
with innocence should mean no case. |
Balance of probabilities, which means convincing a Tribunal that
it is ‘probably’ the case. Fine judgments may do irreparable harm. |
| Unproved case is dismissed |
Spectral evidence is acceptable in the absence of proof. |
| Standard of proof of crime is beyond reasonable doubt |
In the tribunal, if the vote is 2-2 the judge uses a second, casting
vote and can convict. |
| Conflict of Interest |
|
| Conflict of interest by parties to litigation is to
be notified and avoided. |
Sometimes tribunal member and peer reviewer have practiced together.
|
| Collusion is arguable. |
Former colleagues and rivals are used against an accused doctor.
|
| Prior knowledge of the accused or current acquaintance
with Judges or expert witnessed must be declared |
Conflict of roles. Eg. A peer reviewer will sit on a Tribunal in
a case he has peer-reviewed. |
| Expert Issues |
|
| Expert who needs to have some expertise in the matter
at hand’ He signs a declaration and swears his evidence. |
Peer reviewer may be someone who is not in the same specialty,
not in same sub specialty and, as well as that, he may be 20 years
junior to the accused doctor. |
| Evidence may be called on the consistency of the complaint
with the doctors records and reports, as well as on the reliability
of the complainant |
Before a hearing, the peer reviewer is asked to assume guilt and
comment on what level of opprobrium is to be given. This is used as
evidence before facts are established. |
| It is the truth and reliability that is to be tested |
Reliability is not put at issue and complaint support services
are used to fortify the complainant. |
| Rarely able to use similar case evidence |
Similar case evidence can be brought in, including ‘patterns of
practice’. |
| Criminal courts would be willing to look at consent
on a case-by-case basis. |
The Tribunals are constrained by their legislation and mandate
that no patient is capable of giving consent, never ever, even after
they are married. |
| Criminal Court |
HCCC And Medical Board |
| |
|
| Character Of The Accused |
|
| Character is generally irrelevant unless raised by
an accused. |
The character of the doctor is of primary concern and he can be
sent for psychiatric examination |
| An accused and convicted person is assumed innocent
and have sound mind unless evidence is led to the contrary. |
The doctor charged with a sexual offence is assumed to be impaired
and is sent for counselling. |
| Evidence on the mental health status of the accused
is called only in the case where the accused wishes to plead insanity
or diminished responsibility or in mitigation. |
Impairment of the accused is almost assumed and evidence is called
on his character, his therapy, his personality and his propensity
to repeat. |
| Propensity evidence is rare and limited in its use,
although ‘similar case’ evidence may be admitted.. |
Examines treatment files, calls evidence on alleged ‘propensity’
when the doctor denies having done the act at all. |
| Evidence On Credibility |
|
| Evidence enhancing the reliability or credibility of
the complainant is not allowed. Accused assumed innocent and sane
unless he raises it. |
Common practice to get advice from psychiatrists who effectively
support the accuser’s credibility while badmouthing the accused doctor.
|
| When the complainant is obviously deluded the case
would not proceed without corroborating evidence. Other conditions
leading to delusions and confabulations are recognized as suitable
for expert evidence on reliability as they are ‘outside common knowledge.’ |
‘Obviously the presence of a psychiatric condition on the part
of a victim does not discredit her story but it does make the investigation
of the complaint extremely difficult, particularly if, for example,
the victim suffers from some kind of delusional disorder.’ (Kiel,
HCCC, 1993). |
| There is a precedent in Farrell v the Queen, HCA 1998
allows an expert give evidence on ‘reliability’ of the complainant
where a psychiatric condition influences it. |
‘Psychiatrists use their tools of trade to discredit the accusers.’
(Kiel, HCCC 1993) |
| Appeals |
|
| Appeal is available to the CCA on ‘unsafe and insecure’
conviction and is often successful |
Appeals on the facts were abolished on the basis that it would
be inappropriate for such decisions to be made by a court consisting
solely of judges without the benefit of medical opinion. |
| Sentence, right or wrong is served and finished. |
Falsely convicted doctors must admit their crime to be re-registered
and promise not to do it again and some baulk at confessing falsely
and never will. |