The Norwegian Supreme Court - judgment

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1 The Norwegian Supreme Court - judgment COURT: The Norwegian Supreme Court - judgment DATE: 21 December 2007 PUBLISHED: HR A KEYWORDS: Revocation of authorisation as medical practitioner The Act relating to health personnel section 57. SUMMARY: The case concerns the issue of revocation of authorisation as a medical practitioner as a result of sexual abuse of minors committed before the medical practitioner in question was authorised, cf. the Act relating to health personnel section 57. ACT s. 57 (the Health Personnel Act) PROCEDURE: The Norwegian Appeals Board for Health Personnel HPN Oslo District Court TOSLO Borgarting Court of Appeal LB the Supreme Court HR A (case no. 2007/1014), civil case, appeal. PARTIES: The State represented by the Ministry of Health and Care Services (the Government Advocate represented by Advocate Therese Steen) vs. A (Advocate Pål M. Andreassen for review). AUTHORS: Endresen, Flock, Stang Lund. Dissent: Stabel, Sverdrup. (1) (2) (3) (4) Judge Endresen: The case concerns the issue of revocation of authorisation as a medical practitioner as a result of sexual abuse of minors committed before the medical practitioner in question was authorised, cf. the Health Personnel Act section 57. A was born in He studied medicine during the years and served his internship in In March 1990, he was authorised as a medical practitioner and he has since worked in X municipality until his authorisation was revoked in 2005 in connection with the case. In 2004, A was the subject of a formal complaint for sexual abuse committed during the years against the complainant from the latter was 11 years old. The ensuing investigation resulted in two further complaints for corresponding abuse committed against two other young boys. In autumn 2004, A was charged with violation of the General Civil Penal Code sections 195, 196 and 212 as these provisions read in 1990 when the criminal offences ceased. The charge was reported to the health authorities as a matter of routine. On 1 February 2005, the Norwegian Board of Health 1

2 Supervision formally decided to revoke A s authorisation as a medical practitioner. On 23 August 2005, the Norwegian Appeals Board for Health Personnel upheld the decision following an appeal. The decision was carried by four votes against three. The majority of the Appeals Board based its decision on the conclusion that the abuse had been somewhat graver than the courts have subsequently concluded it to have been. The minority, on its part, based itself on a clearly less grave interpretation of the facts in line with the respondent s testimony at the time. (5) (6) (7) (8) (9) (10) (11) The charges against A were dropped on 15 April 2005 as being time-barred in criminal law. Following an appeal by one of the victims, the decision to drop the charges was upheld by the Director General of Public Prosecutions on 1 July the same year. On 8 December 2005, A brought a civil action against the State represented by the Ministry of Health and Care Services claiming that the decision of the Norwegian Appeals Board for Health Personnel should be ruled invalid. In its judgment of 5 July 2006, Oslo District court found in favour of A. The State appealed the judgment, but the District Court s judgement was upheld in Borgarting Court of Appeal s judgment of 16 February 2007 (LB ). The judgement of the Court of Appeal was arrived at under dissent in that the three professional judges voted in favour of upholding the decision of the Norwegian Appeals Board for Health Personnel. The State appealed the Court of Appeal s judgment in its entirety to the Supreme Court. The Court of Appeal also handed down a ruling ordering stay of enforcement. The ruling was not appealed and the respondent has, in various functions, again been in employment as a medical practitioner until the present day. The appellant, the State represented by the Ministry of Health and Care Services, has primarily argued that: The Norwegian Appeals Board for Health Personnel has correctly concluded that the respondent is unfit to adequately practise his profession because of behaviour that is considered to be incompatible with professional conduct, cf. the Health Personnel Act section 57. The courts have full right to review the issues, also in relation to the exercise of administrative discretion. However, the decision regarding whether revocation is necessary is of a health-related nature, and the courts should show caution with respect to re-examining the evaluation of the professional body. 2

3 (12) (13) (14) (15) (16) The central issues for consideration are whether it will weaken the general public s confidence in the health service, and whether the respondent must be deemed to represent a risk to patient safety and whether the respondent is to be allowed to continue as a medical practitioner. In connection with each of these issues for consideration, it is the State s view that the respondent must be considered to be unfit. As regards the question of confidence, it has been emphasised in particular that the confidence the local community has in the medical practitioner in question cannot be given decisive weight; the decisive factor must be whether letting him continue to practise his profession will contribute to weakening confidence in the health service as a whole. The matters which the Court of Appeal has found to be proven are in themselves so serious that they must result in revocation of the authorisation, even though the offences took place a long time ago. The time aspect cannot in itself be decisive. The respondent has not undergone therapy, and the searches he conducted on the internet after the formal complaint was made against him support the conclusion that his orientation is unchanged. It cannot be concluded that A has made a proper break with his past. The Court of Appeal has correctly concluded that the most probable interpretation of the facts shall be used as the basis for the assessment of the evidence concerning what abuse has taken place and the detailed circumstances surrounding the instances of abuse. The Court of Appeal has, however, assessed the evidence incorrectly on a number of points of central importance. It must be concluded that, on several occasions, the respondent obtained what he wished by behaving in a threatening manner towards the victim and that, on one occasion, he drugged one of the victims with morphine and then raped him. It is also important that, following the presentation of evidence to the Supreme Court, it must be concluded that the criminal offences continued in the year the respondent obtained his licence as a medical practitioner, which was in March On 22 December 2006, a new section 20 a), which entered into force on 1 April 2007, was added to the Health Personnel Act. The third paragraph of the provision states that a person convicted of specified sexual offences is excluded from providing health care to children or persons with a disability. The provision cannot be applied directly, but the amendment of the law and the reason given for the amendment clearly state that medical practitioners who have offended in the manner the respondent has done do not have the trust required to work as a medical practitioner. There are no grounds for limiting the revocation. Such an alternative would have had to be presented to the Health Personnel Appeals Board by the respondent, and it would have had to have been considered in connection with a concrete arrangement. The option now available to the respondent is to 3

4 present such views in connection with a new application, if any, to have his licence restored. (17) The State represented by the Ministry of Health and Care Services has entered the following claim: 1. That the court find in favour of the State represented by the Ministry of Health and Care Services. 2. That the State represented by the Ministry of Health and Care Services be awarded the costs of the case in the District Court, the Court of Appeal and the Supreme Court, with the addition of the statutory interest on overdue payments from the due date until payment is made. (18) (19) (20) (21) (22) The respondent, A, has referred to the judgment of the Court of Appeal, which is deemed to be based on a correct understanding of the Health Personnel Act. The board is also deemed to have largely based itself on the correct facts, even though it incorrectly based itself on there not being a requirement for a qualified preponderance of evidence in connection with the assessment of the evidence. The majority in the Court of Appeal incorrectly concluded that the respondent carried out anal intercourse on one occasion with one of the victims, but, with this exception, the Supreme Court can also base itself on the facts the majority found to be proven. This applies to the question of what abuse was committed, and to the question of whether the local community has confidence in the respondent today, and of whether he represents a risk to patient safety. Otherwise, the respondent has emphasised in particular that the relevant alternative in the Health Personnel Act section 57, which is unfit.. because of behaviour that is considered to be incompatible with professional conduct, is primarily aimed at transgressions relating to the practice of the profession. There is no such connection in this case, and the abuse took place before the respondent was authorised as a medical practitioner. The abuse took place between 17 and 20 years ago, and it cannot be accorded material weight when considering the respondent today. His life situation is totally changed. He lives a well-ordered family life and has practised as a doctor for 17 years in a small and compact local community. He is a respected medical practitioner who is integrated into the local community, and no reprehensible incidents have occurred in any context. In this light, it is very far-fetched to claim that the respondent represents a risk to patient safety, but, if some uncertainty is nonetheless deemed to exist in this context, he should not have to suffer as a result of this uncertainty. 4

5 Pursuant to section 60 of the Health Personnel Act, when considering whether an authorisation is to be revoked, the Norwegian Board of Health Supervision may order health personnel to undergo a medical or psychological examination by an expert. However, the Norwegian Board of Health Supervision has chosen not to carry out such examination. (23) (24) (25) (26) (27) The importance of the fact that a long time has elapsed is confirmed by the provisions concerning time-barring, the general rules in the Act relating to the register of convictions section 6 and, not least, the provisions of the Health Personnel Act itself. Pursuant to section 62 of the Act, a medical practitioner may have his authorisation restored, and, pursuant to practice, there will normally be grounds for issuing a new authorisation before years have elapsed after the abuse which resulted in the revocation. On the basis of the evidence presented, it must be concluded that the local community has confidence in the respondent. Given that the incidents occurred such a long time ago, it cannot be assumed that confidence in the health service in general will be weakened if the respondent is allowed to practise his profession. The new section 20 a) of the Health Personnel Act does not apply. The provision is under no circumstances relevant when assessing whether the authorisation should be revoked. If the conditions which section 57 stipulates for revocation of authorisation are to be deemed to be met, it is argued that the authorisation should nonetheless not be revoked, and that there are under no circumstances grounds for more than limited revocation. The respondent, A, has entered the following claim: 1. That the judgment of the Court of Appeal be upheld. 2. That A be awarded the costs of the case in the Supreme Court with the addition of the statutory interest on overdue payments from the due date until payment takes place. (28) (29) I have arrived at the conclusion that the appeal shall be partly allowed, but that grounds do not exist for full revocation of A s authorisation as a medical practitioner. The legal authority for revocation of a medical practitioner s authorisation is section 57 of the Health Personnel Act. The first paragraph of the provision reads as follows: 5

6 The Norwegian Board of Health Supervision may revoke an authorisation, licence or certificate of completion of specialist training if the holder is unfit to practice his profession in a responsible manner for reasons of severe mental illness, mental or physical impairment, prolonged absence from the profession, use of alcohol or narcotics or substances with a similar effect, a gross lack of professional insight, irresponsible conduct, gross breach of duty pursuant to this Act or provisions stipulated in accordance with this Act, or due to behaviour considered to be incompatible with professional conduct. (30) (31) (32) The relevant alternative is if the respondent can be deemed to be unfit to practise as a medical practitioner due to behaviour considered to be incompatible with professional conduct. It follows from unambiguous practice that the two considerations that must be accorded particular weight in this assessment are whether the respondent represents a risk to patient safety today and whether confidence in the health service will be weakened if he is given an opportunity to continue to practise despite the serious criminal offences he has committed. As the basis for a concrete assessment of this case, I will first say a little more about the evidence requirements that must be applied and about what should be concluded with respect to the abuse that has taken place. I will then present my view on the application of section 57 in connection with acts not committed in connection with the practising of a profession. The Health Personnel Act section 57 covers highly disparate matters, and no general rule can be formulated with respect to whether a qualified preponderance of probability is required in order to base a decision on the facts that are to serve as the basis for revocation. The grounds for revocation of an authorisation are considerations of patient safety and the need for the general public to have confidence in the health service. These considerations are also relevant when assessing what requirements are to apply with respect to preponderance of proof, and the principle in this as in other contexts must be that a general preponderance of probability is sufficient. In case law, however, a requirement has been applied in various contexts for a qualified preponderance of probability when facts that are particularly incriminating for the party concerned are to be used. I refer to Rt (Norwegian Supreme Court Reports) pages , Rt on pages and to the Supreme Court judgment of 10 September 2007 in the case HR A. Paragraph 67 of the latter judgement reads as follows: Since the decision is based on A having committed a criminal offence, and the decision not only has tangible financial consequences for him but will also have consequences for the confidence he needs to conduct his business, I believe that on the basis of generally accepted Norwegian principles for assessing evidence a requirement must also apply in connection with this sanction for a clear preponderance of probability that the act which forms the 6

7 basis for the sanction was actually committed, cf. Ot.prp.no.70 (Proposition no 70 to the Odelsting) ( ), pages and Rt (33) The judgment concerned the confiscation of a catch pursuant to the Act relating to sea-water fisheries section 11 third paragraph. In the proposition to the Odelsting referred to in the paragraph reproduced from the judgment, the Ministry endorses the Supreme Court s decision in Rt The Ministry adds: Administrative confiscation pursuant to the Act relating to sea-water fisheries section 11 shall not be deemed to be a sanction in that it concerns confiscation of the value of a catch which for one reason or another is unlawful. The confiscation does not therefore have a penal purpose. It will nonetheless often be seen as such by the person against whom the confiscation is directed. (34) In Rt paragraph 34, the practice is summarised as follows: The preponderance principle is deviated from in some types of cases in which an incorrect judgment in one direction will have considerably greater personal consequences for one party than an incorrect judgment in the other direction. This is especially the case in criminal cases in which a conviction requires such a great preponderance of probability that no reasonable doubt remains. In more subdued form, we also find the principle applied in certain types of civil cases, for example, in the case of a claim for damages after acquittal in a criminal case, or in favour of a party who it is claimed is not entitled to an insurance settlement as a result of strongly reprehensible actions on his or her part. (35) (36) This judgment, which concerned the question of whether it could be concluded that a marriage that had been entered into was not genuine, is also of interest because it illustrates the fact that other considerations lead to the preponderance principle nonetheless being applied. In the case in question, control considerations were found to be so important that grounds did not exist for deviating from the preponderance principle. I also refer to Rt In that case, the preponderance principle was applied in a case in which there was a particularly close connection between possible previous acts of violence and the issue under consideration. It can be argued that the interests which section 57 of the Health Personnel Act is intended to protect are of such a nature and importance that consideration for the party against whom the accusations are directed must yield. However, I find that when, as in this case, it is a matter of basing oneself on circumstances in the past of a strongly defamatory nature and that these circumstances have no immediate connection with the practising of the 7

8 (37) profession in question, a requirement for qualified preponderance of probability must apply. On the basis, among other things, of the respondent s testimony, the previous courts have found that, during the years 1982 to1989, he was guilty of repeated sexual abuse against five boys aged 12 to 15 years. The abuse consisted of groping, reciprocal masturbation, oral sex and movements similar to intercourse leading to ejaculation between the thighs of the boys. The Court of Appeal, a majority of six judges, also found it proven that he carried out anal intercourse on one of the boys. The whole Court of Appeal found that it could not conclude that the respondent employed force or threats, and nor was it found to be proven that the respondent had drugged any of the boys with morphine. On the other hand, the Court of Appeal concluded that: A exploited his position as an adult and, on the basis of the statements made to the police by several of the boys which are largely in agreement on this point he also used various kinds of enticements, such as trips, the use of a boat, sweets and alcohol. (38) With respect to the length of the period over which the criminal offences took place, the Court of Appeal concluded as follows: The sexual abuse committed by A did not take place in connection with the practising of his profession as a medical practitioner, and the Court of Appeal finds that abuse did not take place after he received his authorisation as a medical practitioner in spring 1990, cf. above. (39) (40) (41) Extensive evidence has been presented to the Supreme Court concerning the extent and nature of the abuse the respondent has committed. Additional testimony from the victims and the respondent has been documented to a certain extent and the State has referred in particular to the fact that the Supreme Court has a considerably better basis on which to draw conclusions on the basis of the respondent s use of the internet during the phase after he was made aware of the complaints. In my view, however, the case is largely in the same position as it was for the Court of Appeal. The fact that the Court of Appeal erroneously concluded that a qualified preponderance of probability is not required makes it particularly dubious to depart from, to the detriment of the respondent, the assessment of the evidence made by the Court of Appeal on the basis of the evidence presented at the time. I also refer to the fact that, in relation to the anal intercourse that was found to have been proven, the Court of Appeal emphasised that this would also be deemed to have been proven if a requirement for a qualified preponderance of probability were to apply. The presentation of evidence to the Supreme court does not, in my view, constitute grounds for departing from the Court of Appeal s assessment of the evidence. 8

9 The principle has long been that it is normally only reprehensible behaviour in connection with the practising of the profession that will constitute grounds for revocation of an authorisation. This was emphasised in the preparatory works to the Act relating to medical practitioners of 1980, and in more detail in Ot.prp.no.13 (Proposition no. 13 to the Odelsting) ( ) pages , item Behaviour deemed to be incompatible with professional conduct: The Ministry presumes that there will still be a need for a condition for revocation of this nature, which can justify on a more general basis the revocation of an authorisation or licence. The condition as it is worded in the current acts relating to medical practitioners and dentists ( behaviour unworthy of a medical practitioner/dentist ) seems rather old-fashioned in relation to current language use. It is therefore proposed to express it as behaviour which is considered to be incompatible with professional conduct in order to link the condition for revocation more closely to the practising of the profession. As a rule, the supervisory authorities should refrain from intervening in reprehensible behaviour that has nothing to do with the practising of the profession unless it involves very serious matters, for example criminal acts such as theft, embezzlement, assault, bodily harm, repeated drink driving or violation of the chapter of the General Civil Penal Code relating to sexual offences. In accordance with currently applicable law, a medical practitioner who was found guilty of incest and a medical practitioner found guilty of having killed his spouse had their authorisations revoked because this was deemed to be behaviour unworthy of a medical practitioner. It is objective circumstances that will be decisive in the assessment of whether unworthy behaviour is present. The extent to which authorised health personnel require the confidence of the general public will vary. The objective norm may vary, depending on which professional group and which function is involved. In specific cases, the supervisory authority should therefore endeavour to identify the objective norm for the profession in question. Given that the behaviour is not necessarily related to the practising of the profession, the supervisory authority should only intervene against health personnel in matters not closely related to their profession in very special exceptional cases, cf. the above. (42) (43) Pursuant to the preparatory works and practice, it must be concluded that quite a lot is required for a matter that has no connection with the practising of the profession to result in revocation of an authorisation. However, it follows form long and established practice that, for criminal acts of the kind and extent committed by the respondent, the reaction is revocation of the authorisation if the transgression is discovered not many years after it was committed. In a number of cases, the authorisation of health personnel has been revoked on the basis of matters that must be said to be clearly less grave than in the case of the respondent. I add that it is not in dispute that the respondent s authorisation as a medical practitioner could have been revoked if the criminal offences had been discovered within a reasonable period of time after they were committed. 9

10 (44) The main issue in the case is thus how much importance is to be attached to the fact that when the board made its decision, 15 years had elapsed since the last instance of abuse against a minor, and that, during these years, the respondent had practised as a medical practitioner without grounds for criticism having arisen. Already in the preparatory works to the Act relating to medical practitioners, NOU 1976:1 page 25, it is warned against placing too much emphasis on older offences. The following is emphasised in connection with the fact that it is pointed out that the past may also be relevant: One must, however, be cautious with respect to matters that lie many years in the past, and one must attempt to assess probable future behaviour. (45) There is a complex rationale for the provisions relating to time limitation in criminal law, but important considerations include the fact that punishment loses much of its purpose as time elapses and that a person who has committed a serious crime must also at some point be given an opportunity to put the matter behind him. In this connection, it may also be natural to refer to the Act relating to the registration of punishments for crimes section 6 and to what Ot.prp.nr.21 ( ) says about the provision. The Act relating to the registration of punishments for crimes section 6 sets limits, in general, on the scope of police certificates, so that even serious crimes will not normally be included when the sentence was completed more than 10 years previously. The proposition states the following on page 28:..and the same applies to older criminal acts that the person in question must now be allowed to put behind him. Otherwise, it would be too harsh and unreasonable for the person to whom the certificate applies to never be free of the consequences of his mistakes in younger years. (46) (47) (48) Considerations of patient safety and the need for quality in the health service and confidence in health personnel means that the assessment of whether an authorisation as a medical practitioner should be revoked will be more complex, but it will also be the case in connection with such revocation that weight must be attached to such considerations. The Supreme Court has been given a wide-ranging account of administrative practice. However, the many decisions provide little guidance in relation to the present issue. On the one hand, there are no examples of revocation because of matters that lie as far in the past as in the present case. There are few examples of matters unconnected to the profession having been accorded decisive weight when they have lain far in the past. On the other hand, there are several examples of doctors and other health personnel having had their previously revoked authorisations restored before anything like such a long time has elapsed since the criminal offences ceased as is the case here. 10

11 It is difficult today to conclude that the respondent represents such a risk to patients that this can justify the revocation of his authorisation as a medical practitioner. At the time the Norwegian Appeals Board for Health Personnel made its decision on revocation, he had been working as a general practitioner in a small and transparent local community for 15 years, and there is no information to indicate that he has behaved reprehensibly in any way towards patients or others. It is probably the case that there are many unrecorded cases of reprehensible behaviour of this kind, but, in my view, it can be concluded that the attention the media have devoted to this case would probably have brought any reprehensible behaviour to light. The respondent has been married for 15 years and, according to the information available, he lives a normal married life with his wife. They have three children together. His life situation is different in all ways to what it was when the abuse took place. (49) (50) (51) (52) The searches made on the internet by the respondent when he was made aware of the complaints against him were, according to this testimony, made in order to gain a better understanding of how children experience abuse of the kind he had committed. However, the 41 child pornography stories he stored intermediately were of such a nature that they were obviously unsuited to such a purpose. Even though, seen in this light, no satisfactory explanation has been provided for why the stories were sought out and stored, this matter cannot, in my opinion, lead to a different conclusion with respect to the question of whether the respondent represents a risk to patients. When the respondent was informed about the complaints, he chose to refrain from making a statement to the police. When he first gave evidence to the supervisory authorities in a statement on 28 February 2005, he gave a strongly misleading explanation with respect to the extent and nature of the abuse he had committed. He continued to withhold information at a meeting with the Norwegian Board of Health Supervision on 13 April the same year. It was not until the case was brought before the District Court that the respondent admitted most of the instances of abuse which were later found to be proven. It would undoubtedly have inspired more confidence if the respondent had immediately, or at least after some reflection, had admitted the facts of the case. When considering this, however, it must be taken into consideration that a correct and full statement would have entailed confessing to the criminal offences with which he was charged. It will be apparent from what I have said so far that there are, in my view, circumstances that support the conclusions reached by previous courts. I have nonetheless come to the conclusion that it would be correct to implement a limited revocation of the respondent s authorisation as a medical practitioner. I attach particular weight to the followings factors and circumstances: The respondent abused young boys in a ruthless and offensive manner. If the criminal offences had resulted in sentence being passed, they would have resulted in a very long sentence. He maintained contact with and abused three of them over a period of several years. The offences which form the basis for 11

12 the case extended over several years up to and including This means that A was 30 years old and had completed his training as a medical practitioner when the last criminal offence was concluded. He exploited his position as an adult in a systematic manner, with an apparent complete lack of understanding of the harmful effects that had to be expected on the children he exploited. Insofar as he was concerned with problems, they appear to primarily have been his own. His lack of reality-orientation is clearly expressed in a letter he wrote to a psychologist in 1986 with whom he had had conversations earlier the same summer: And I have met a new friend who is incredibly good at talking about our shared feelings, who understands the limitations of our relationship. But he also really appreciates my way of showing my love. (53) (54) (55) The boy mentioned in the letter was 11 years old at the time. The respondent has in various contexts expressed regret for the abuse he was guilty of, and he has emphasised that he now distances himself from these acts. However, the information available in the case does not provide convincing evidence that he fully understands how serious the abuse was. It seems as if the respondent, even today, does not quite recognise the reality of the prolonged abuse. In various contexts, he has used the expression that he admits that he crossed a line. This expression leaves a certain doubt with respect to whether the respondent believes he stayed near the line but that he was injudicious and should have shown greater restraint. On 22 December 2006, the Health Personnel Act was amended and a new section 20 a) added. The provision aims, among other things, to define a requirement for a police certificate in order to ensure that persons who have been given a fixed penalty fine for or have been convicted of having committed certain specified sexual crimes or who are preliminarily or finally charged for such offences are not appointed to positions in which health services are provided to children or persons with a disability. There is a special provision stipulating that a police certificate shall not be limited to the last ten years after completion of a sentence, but that it shall include all offences irrespective of how far back in time they took place. The third paragraph states: A person on whom a fixed penalty fine has been imposed or who has been convicted of violations as mentioned in the second paragraph is precluded from providing health care to children or persons with a disability. (56) This amendment was initiated as a private proposal by four members of the Storting and it was aimed at introducing measures to protect children from contact with health personnel who have been charged, indicted or convicted of sexual abuse of children. After the Social Affairs Committee in the Storting requested the Government to carry out a broad-based assessment of these issues, a bill was proposed, Ot.prp.no.86 (Proposition no. 86 to the Odelsting) 12

13 (57) (58) (59) (60) ( ). On page 16 of the proposition, it is stated that the objective is still that children and parents should be able to feel secure that the children will not come into contact with health and social services personnel who have been convicted of or been charged or indicted for sexual crimes. It was considered whether to make it a requirement to present a police certificate, also in the case of persons who already hold positions in which health or social services are provided for children or disabled people. However, this was not deemed to be necessary in that it was concluded that the police would have a duty to provide such information to the employer or the health authorities if the suspect was in a position in which he or she provided services to children or disabled people. Section 20 a) of the Health Personnel Act does not apply in relation to the respondent. In my view, this does not constitute an obstacle to attaching considerable weight, when considering whether, in objective terms, it will damage the reputation of the health service if the respondent is allowed to retain his authorisation as a medical practitioner, to the fundamental attitude that underlies the amendment, namely that a person who has committed a sexual crime shall not provide health care to children or persons with a disability. The gravity of the abuse of which the respondent is guilty, the uncertainty that must be deemed to be present with respect to the degree to which he has acknowledged the seriousness of his transgressions and the legislator s measures to prevent health personnel who have committed sexual crimes from ever providing health care to children, lead me to conclude overall that it will damage the reputation of the health service if the respondent is given an opportunity to continue to provide health services to children. However, the adoption of section 20 a) also provides a basis for the conclusion that health personnel who are affected by the provision may nonetheless, depending on the circumstances, be allowed to work as medical practitioners in other contexts than by providing health services to children and people with a disability. In line with this, I have reached the conclusion that it can hardly damage the reputation of the health service if the respondent is allowed to continue as a medical practitioner in other contexts than in relation to children. In this context, I attach particular weight to the fact that 18 years have elapsed since the criminal offences, that the abuse was committed before the respondent was authorised as a medical practitioner and had no connection with his professional conduct and that he has practised as a GP for 17 years without there apparently being anything to criticise in connection with his professional conduct. A conclusion must then be reached as to whether there is legal authority for a limited revocation, and whether there are any procedural obstacles that would prevent the Supreme Court from deciding such a limited revocation. The Health Personnel Act section 59 allows for an authorisation to be limited to the performance of certain activities on specific conditions, and it follows from the preparatory works to the Act, cf. Ot.prp.no.13 (Proposition no. 13 to the 13

14 Odelsting) ( ) page 181 that the provision also applies in relation to revocation. Based on the intention of the provision, I find that there is nothing to prevent the limitation being delimited by specifying what the authorisation shall not include. (61) (62) (63) (64) Moreover, it follows from the Health Personnel Act section 71 first paragraph that all aspects of the case can be considered by the courts. This also applies to the assessment of appropriateness that lies in the exercise of administrative discretion. The preparatory works to the Act relating to medical practitioners section 10, carried over in the Health Personnel Act section 71, state that the courts are not limited to reversing the decision that is up for review but can make a new decision in the matter, cf. Ot.prp.no.1 ( ) page 229. However, it will normally be natural for the courts to show restraint in stipulating an alternative solution. This must, not least, be the case if the alternative solution has not been considered by the health authorities. However, the reason why it is unproblematic in the case in question to stipulate a limitation on the revocation is that the limitation can be directly related to the Health Personnel Act section 20 a) while, at the same time, it can be left to the health authorities to decide the supervisory arrangements and guidance provided for in the Health Personnel Act section 59 in connection with whatever position may be involved. The decision is not fully in favour of either of the parties. I find that the costs of the case should not be awarded, neither for the hearing in the Supreme Court nor for the hearings in any of the lower courts. I vote for the following judgment: 1. A s authorisation as a medical practitioner shall be revoked insofar as positions that involve providing health services to children are concerned, cf. the Health Personnel Act section 20 a) third paragraph. 2. When A takes up a new position, the Norwegian Board of Health Supervision shall stipulate arrangements for supervision and guidance, cf. the Health Personnel Act section 59. The Norwegian Board of Health Supervision shall decide the length of the period and in which contexts such measures are deemed to be required. 3. Costs are not awarded in connection with the hearing of the case in any of the courts. (65) Judge Stabel: I have come to the conclusion that I must find in favour of the State in that I believe the decision to revoke A s authorisation as a medical practitioner to be valid. With respect to the conditions for the revocation pursuant to the Health Personnel Act section 57, I refer to the review of the case by the first-voting judge, which I largely endorse. Nor do I disagree that 14

15 limited revocation pursuant to section 59 may be an alternative to full revocation under the circumstances. On my part, however, I find the fundamental condition for revoking the authorisation to be satisfied in this case. And, unlike the first-voting judge, I cannot see that there are grounds at the present time for limiting the revocation to apply only to work with children. (66) (67) (68) (69) (70) As I see it, the prolonged and extensive abuse to which A subjected five boys aged between 12 and 15 years during a period in which he himself was a medical student and later a qualified medical practitioner was so serious that, today, he must be deemed to be unfit to practise his profession as a medical practitioner in a satisfactory manner. Such behaviour, which must indisputably be deemed to be incompatible with professional conduct, and which would clearly have constituted an obstacle to authorisation if the matter had been known in 1990, cannot automatically be remedied by the fact that a long period of time has since elapsed. If he were to regain the public s confidence as a medical practitioner, he would in such case have had to have demonstrated greater insight into and understanding of the reprehensibility of his actions and their damaging effect on the victims than he has. I refer in this context to the account given by the first-voting judge of A s reactions from the first complaint was made until the present. The consequences of sexual abuse of children are a major health problem, and the damage often does not manifest itself until adulthood. A medical practitioner will have to diagnose, and deal with, such damage in all patient groups, not just children. To limit the authorisation in the manner advocated by the first-voting judge will, therefore, not be sufficient to ensure that he can enjoy the required confidence as a medical practitioner. I would like to point out that the issue as it stands today is not primarily the risk of new abuse against children among the doctor s patients, but whether A has the authority a medical practitioner should have in his professional capacity. One cannot then simply consider the abuse, which, it is true, was committed long ago, but one must also consider his trivialising attitude to the victims and to the deliberately untruthful testimony he gave to the supervisory authorities in connection with the case. Blameless professional conduct over a period of 15 years, a normal family life and the fact that he no longer actively displays the tendencies which originally led to the abuse are not enough, in my view, to restore the necessary confidence. Acting judge Sverdrup: I am largely and, in terms of the conclusion, in agreement with the second-voting judge, judge Stabel. Judge Flock: I am largely and, in terms of the conclusion, in agreement with the first-voting judge, judge Endresen. Judge Stang Lund: I agree with the preceding judge. 15

16 (71) After the voting, the Supreme Court pronounced the following judgment: 1. A s authorisation as a medical practitioner is revoked insofar as positions that involve providing health services to children are concerned, cf. the Health Personnel Act section 20 a) third paragraph. 2. When A takes up a new position, the Norwegian Board of Health Supervision shall stipulate arrangements for supervision and guidance cf. the Health Personnel Act section 59. The Norwegian Board of Health Supervision shall decide the length of time and in which contexts such measures shall be deemed to be necessary. 3. Costs are not awarded in connection with the hearing of the case in any of the courts. 16