A Professional Conduct Committee v Health Practitioners Disciplinary Tribunal
[2021] NZHC 2249
•30 August 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-000516
CIV-2020-485-000570 [2021] NZHC 2249
BETWEEN A PROFESSIONAL CONDUCT COMMITTEE
Appellant/ApplicantAND
HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL
First Respondent
AND
DR D
Second Respondent
Hearing: 17-18 May 2021 Appearances:
S J M Mount QC, S C M Waalkens and C A Twyman for the Appellant/Applicant
D Vincent for the First Respondent
M F McClelland QC and R T Daley for the Second RespondentJudgment:
30 August 2021
JUDGMENT OF NATION J
Introduction
[1] The appellant (the PCC) was investigating concerns over a medical practitioner’s conduct. The medical practitioner, his lawyer and a medical representative from the practitioner’s insurer met with the PCC to try and dissuade the PCC from laying a charge before the Health Practitioners Disciplinary Tribunal (the Tribunal). The PCC decided to proceed with a charge against the practitioner. To prove three particulars of that charge, the PCC need to put in evidence admissions the practitioner made during the meeting with the PCC.
A PROFESSIONAL CONDUCT COMMITTEE v HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL [2021] NZHC 2249 [30 August 2021]
[2] In a pre-hearing decision, the Tribunal ruled that evidence of what the practitioner said in the meeting was inadmissible before the Tribunal.1 The PCC, by appeal and alternatively through judicial review proceedings, argues the Tribunal’s ruling was wrong.
Background
[3] Under the Health Practitioners Competence Assurance Act 2003 (the Act), the PCC has the role of investigating complaints or concerns about the conduct of health practitioners, including medical practitioners who are covered by the Act. On completion of its investigation, the Act allows the PCC to make various determinations as to how the concerns should be dealt with. One possibility is that the concerns could result in a PCC laying a charge before the Tribunal.
[4] On 31 August 2017, the Professional Standards Coordinator for the Medical Council advised the practitioner it had received information from the Ministry of Health which raised concerns about his prescribing practices and invited his comments.
[5] In a letter of 17 October 2017, the Professional Standards Coordinator of the Medical Council advised that the complaints triage team had decided the matter should be referred to the Council, and potential outcomes could include a referral of the matter to a PCC for investigation.
[6]In an emailed response of 9 November 2017, the practitioner said:
I can only apologise for my performance which fell below that expected of m[e] by myself, my colleagues and the Council. While I might seek to blame exhaustion due to an extremely high work load due to staff resignations, and a 1:2 call roster for over a year, I accept that what I did was not appropriate …
[I] have taken steps to address the issues. …
I am obviously prepared to accept whatever punishment the Council deems necessary, but would request that this is done in a way that protects the patients [of the area in which he was practicing].
1 Dr D v A Professional Conduct Committee HPDT 1106/Med201482P, 26 August 2020 [Tribunal decision].
[7] In a letter of 19 December 2017, the Medical Council’s Professional Standards Coordinator advised that the Council had resolved to refer matters to a PCC under s 68(3) of the Act and provided particulars of the matters the PCC would be investigating. They related to the circumstances of the practitioner’s alleged self- prescribing and prescribing to his family members.
[8] In a letter of 3 May 2018, the convenor of the PCC advised the medical practitioner that a PCC had been established to investigate certain matters of concern. The letter stated:
The PCC will now begin to gather information it considers relevant to its investigation in accordance with s 76 of the Act (attached). This may include, but is not limited to, receiving any statement, document, information or matter that, in its opinion, may assist it to deal effectively with the subject of its investigation. The PCC will keep you updated throughout the course of its investigation.
[9] The letter described a number of documents which it had received from Professional Standards and advised it would be considering them.
[10] The letter requested, pursuant to s 76 of the Act, that the practitioner provide the PCC with all clinical history and records, file notes, or any other relevant information in relation to three specific matters. The letter then went on:
You have a right to be heard in person or to provide written submissions to the PCC before the PCC concludes its investigation. When the PCC’s investigation is complete, the PCC will make a recommendation and/or determination in accordance with section 80 of the Act. The options available to the PCC are contained in section 80 of the Act (attached). We will provide you with a copy of the information gathered by the PCC before you meet with the PCC or provide any written submissions.
[11] The letter advised the practitioner of his right to be legally represented and encouraged him to obtain both personal and professional support during the process. In ensuing correspondence, it appears there were issues with this letter reaching the practitioner. A copy was sent to the practitioner again by email on 13 June 2018.
[12] In a letter to the practitioner’s then legal counsel dated 20 July 2018, the legal adviser to the PCC said:
I will keep you updated as to the progress of the PCC’s investigation, and provide further disclosure of the PCC’s file prior to inviting [the practitioner] to meet with the PCC and/or to provide written submissions in the usual manner.
[13] On 17 July 2019, the members of the PCC, with its legal adviser, met with the practitioner, his counsel Mr Matthew McClelland QC and a law clerk assisting Mr McClelland. Also in attendance was Dr Cookson. Dr Cookson is a general practitioner but also works part-time as a medico-legal adviser for the Medical Protection Society (MPS). The Society is the indemnity provider for around 90 per cent of registered medical practitioners in New Zealand and provides support for medical practitioners facing complaints or claims arising from professional practice.
[14] On 30 July 2019 and 19 September 2019, the PCC provided the practitioner with the transcript from the meeting and further documents obtained during the investigation. A letter from the PCC of 19 September 2019 invited the practitioner to provide it with written submissions and asked that, if they be provided, this be done no later than 11 October 2019.
[15] Mr McClelland presented a written submission to the convenor in a letter of 8 November 2019. That submission sought to explain why the practitioner had not changed general practitioners and arranged for Tramadol to be appropriately prescribed. It described workload pressures the practitioner had been under and how this had affected him. In the letter, the practitioner acknowledged that prescribing medication to his wife was not appropriate but provided an explanation by way of mitigation. He denied writing a prescription under the name of a particular medical centre on 5 April 2017 and referred to information and documents to support that. The practitioner provided some information as to medications kept at his holiday home to support his submission that these medications were used solely for potential health issues arising in remote areas.
[16] In a summary at the end of the submission, McClelland said the practitioner had been open with the PCC about the Tramadol prescribing and his prescribing to his wife and son. He said the practitioner had acknowledged his actions were not appropriate and very stupid. He referred to the practitioner’s regret at what had occurred and emphasised that the practitioner had handed in a letter of resignation.
Mr McClelland submitted the PCC investigation, which had taken approximately two years, had taken its toll on the practitioner and his family. The practitioner was committed to ceasing all work. Mr McClelland submitted there was no public interest in the PCC laying disciplinary charges against a “professional who has given so generously to his community, in light of his pending retirement”.
[17] On 12 December 2019, the PCC issued its decision that a charge be brought against the practitioner in the Tribunal.
[18] The PCC laid a charge of professional misconduct with the Tribunal on 8 April 2020. In summary the charge alleges:
(i) the practitioner had been guilty of professional misconduct in prescribing the specified drugs for his own use in the names of family members knowing they were not the intended recipients;
(ii) he had prescribed drugs for his own use and consumed them without adequate independent medical oversight;
(iii) in doing so, he had acted contrary to an agreement he had with the Council’s Health Committee that he would not self-prescribe and/or would maintain total abstinence from mood-changing drugs;
(iv) he had attempted to mislead the Council by stating that specified drugs were for his wife and son rather than for his own use; and
(v) the practitioner wrote prescriptions for his family members in breach of his ethical obligations and accepted standards of practice.
[19] At a directions conference on 11 May 2020, the Tribunal made timetabling orders and scheduled a substantive hearing for four days beginning 21 September 2020.
[20] The PCC convenor served a copy of her witness statement on 29 June 2020. With it, she produced a copy of the transcript of the practitioner’s meeting with the PCC.
The application for exclusion of that evidence
[21] On 16 July 2020, the practitioner applied for an order excluding as evidence the transcript of his interview.
[22]The application for exclusion of evidence was made on the grounds that:
(a) the transcript was a transcript of a submission provided by the practitioner pursuant to his rights under s 80(4) of the Act;
(b) the submission was not evidence obtained pursuant to s 76(2) of the Act; and
(c) the PCC failed to advise the practitioner before obtaining the transcript that they:
(i)intended to hear oral evidence from him under s 76(2) of the Act and anything he said in the meeting would be used as evidence against him to support a particular and/or a charge; and
(ii)failed to offer the practitioner the opportunity to sign the transcript.
[23] In an affidavit in support of the application, the practitioner swore an affidavit and said as to the meeting on 17 July 2019:
… I understood the meeting to be for the purposes of providing submissions to the PCC as they notified me that they had completed their investigation. I wanted to explain my position, to advise them about the letter of resignation that I had sent to my employer, and to discuss my retirement from clinical practice. I understood that the PCC would hear these submissions and may wish to ask questions. I also understood that this was my opportunity to address any issues that the PCC might raise with the overall intention of convincing them that I was not a risk to the public and that, given my imminent retirement, no further action was required.
[24] The practitioner said he was not advised by the PCC that they were collecting evidence or that they required him to verify his position. He said he was not told by the PCC at any time prior to or during the meeting that whatever he said could be used as evidence against him. He did not understand that it was the PCC’s intention to use
this transcript as evidence against him to support the particulars of the professional misconduct charge that was ultimately brought against him.
[25]The practitioner said in his affidavit:
If I had understood that the transcript was going to be used in this way, I would have sought legal advice and subject to that advice I would either not have agreed to be interviewed on that basis, or alternatively I would have sought legal advice prior to answering a number of the PCC’s questions and would have been more circumspect in my comments.
[26] The practitioner said he was offered the opportunity to read the transcript but, given the stress of the proceedings, he did not. He said he was never offered the opportunity to sign it.
[27] A tribunal was convened to determine the application. Written submissions were presented for both the practitioner and the PCC. There was a hearing by telephone conference on 26 August 2020. The Tribunal, through its deputy chair Ms M J Dew QC, issued its decision on 3 September 2020.
The Tribunal’s decision
[28]In that decision, the Tribunal determined:
(a) There was no dispute that both the PCC and the practitioner understood, at the time of the PCC interview, that the transcript would be used by the PCC to consider whether charges should be laid and/or whether some other recommendation should be made by the PCC.
(b) There was dispute between the parties as to whether the practitioner also understood the transcript could be produced to the Tribunal. The Tribunal could not resolve any disputes in the contested affidavit evidence and did not have sufficient uncontested evidence to find the practitioner understood the PCC intended to use the interview transcript as evidence before the Tribunal. This had not been highlighted to the practitioner during the meeting. The Tribunal was not satisfied the practitioner intended to waive any privilege against self-incrimination that he might retain under the Act.
(c) As a result of ss 76(5) and 77 of the Act, the PCC has the power to compel a practitioner to produce documents to assist the investigation, but no power to compel the practitioner to provide any oral or written evidence or submissions to the PCC during its investigation.
(d) There have been cases where the PCC had previously produced practitioner interview transcripts to support charges before the Tribunal but there was no case where this evidence had been received over the objection of the practitioner.
(e) The practitioner was entitled to an adherence to the principles of natural justice affirmed by s 72(3) of the Act and 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA). The Tribunal considered the question in the case before them was “whether it is a breach of natural justice for the PCC to produce an interview transcript from a PCC interview, where the practitioner had understood this was not to be regarded as evidence to be put before the Tribunal without his consent”.
(f) Consistent with the rules of natural justice, the Act, in some limited respects, preserved the privilege against self-incrimination for a practitioner and others. In support of this, the Tribunal stated:2
(a) Under s76(5) of the Act, a PCC may require that any evidence it receives be supported by a statutory declaration, except that this does not apply to any submission made by a practitioner or complainant under section 80(4) of the Act;
(b) Under s76(7), no civil or disciplinary proceedings lie against any person in respect of any evidence, statements or submissions made unless the person has acted in bad faith;
(c) Under s77, the PCC can call for information or documents from any person including the practitioner; and
(d) Finally, under s80(4) of the Act, a PCC cannot make any recommendation or determination unless the health practitioner or complainant has each been given a reasonable opportunity to make written submissions and be heard on the matter.
2 At [43].
(g) Section 76 of the Act was intended to retain key aspects of the privilege against self-incrimination for the practitioner while still providing the opportunity to present information to the PCC that might assist it in determining whether to lay a charge or take some other action.
(h) The Tribunal was generally obliged to determine the admissibility of evidence using a two-step process:
(a)first the Tribunal should assess whether the evidence would be admissible under the Evidence Act 2006; and
(b)the Tribunal might nevertheless, in its discretion, admit the evidence if that evidence might assist the Tribunal to deal effectively with the matters before it. The discretion must be exercised judicially, considering the purposes and principles underlying the Act, the Evidence Act and the particular circumstances of the case.
(i) The rules of natural justice would provide a hard limit on the discretion of the Tribunal to admit evidence.
[29]Approaching matters that way, the Tribunal considered:
(a) The PCC transcript was relevant admissible evidence under s 7 of the Evidence Act.
(b) The transcript should not be excluded on the grounds, as contended for the practitioner, that it is unreliable.
(c) It was necessary to exclude the transcript evidence under s 8 of the Evidence Act on the grounds it would have an unfairly prejudicial effect on the proceeding before the Tribunal. Admission of the evidence would be contrary to s 76(7) of the Act. That subsection did not permit the PCC to use the transcript as evidence against the practitioner, in the circumstances of this case where no bad faith was alleged by the practitioner.
(d) As to the second step of analysis under the Evidence Act, the Tribunal was not willing to exercise its discretion to admit the transcript evidence given the hard limit on the discretion presented both by s 76(7) and sch 1 cl 5 of the Act, and the breach of natural justice that would arise in unfairly admitting evidence contrary to the Act.
Pleadings
[30] The PCC’s challenge to the Tribunal ruling was initially made by the filing of a notice of appeal dated 15 September 2020. The practitioner applied for dismissal of the appeal on the grounds that the decision made by the Tribunal was an interlocutory decision. He contended the Act does not permit an appeal from an interlocutory decision.
[31] In the face of that challenge, the PCC, by statement of claim through judicial review dated 27 October 2020, sought a declaration the decision was erroneous in law and an order quashing the decision.
[32] By consent, an order was made that the practitioner’s application for the appeal to be dismissed was to be heard together with the substantive appeal and the appellant’s application for judicial review of the decision.
[33] In its statement of claim in judicial review, the PCC claimed the Tribunal’s decision was erroneous in law as:
(a) the Tribunal misinterpreted s 76(7) of the Act as a “hard limit” on the admissibility of the evidence;
(b) the Tribunal erred in concluding that the use of the transcript would involve a breach of natural justice;
(c) the Tribunal erroneously interpreted the privilege against self- incrimination;
(d) the Tribunal erroneously concluded that admitting the transcript evidence would have an unfairly prejudicial effect on the proceeding;
(e) the Tribunal failed to properly exercise its discretion under sch 1 cl 6 of the Act.
[34] The PCC sought a declaration that the decision was erroneous in law and an order quashing the decision.
[35] In his statement of defence, the practitioner admitted the PCC had invited the practitioner to meet with them but said the invitation was of a general nature and the PCC did not stipulate the matters it intended to discuss during the meeting. He asserted that he had met on the understanding that the purpose of the meeting was to allow him to speak to the PCC “in an entirely free and frank manner and to provide submissions on a range of issues, including whether laying a disciplinary charge before the [Tribunal] was justified”. He asserted that at no stage during the meeting was he or his legal adviser cautioned that any information he gave during the meeting might be relied on and used as primary evidence to establish a disciplinary charge or particulars of a disciplinary charge that might be brought against him. He alleged that the PCC instead encouraged him to speak freely and frankly to give context to the topics of discussion and respond to questions. He asserted that, until the time of his meeting, it had not been the practice of PCCs to use the transcripts of meetings with practitioners as “primary evidence to support a disciplinary charge or particular of a disciplinary charge”.
[36] The practitioner, as an alternative defence, asserted he had a legitimate expectation that the PCC, as a public authority, could not defeat a legitimate expectation created by an established practice without first informing those to whom the expectation applies. It was submitted that practitioners under investigation routinely meet with PCCs to make submissions on a range of matters with a view to persuading PCCs not to exercise their discretion under s 80 of the Act to bring a disciplinary charge against them or to make a decision, recommendation or determination short of bringing a disciplinary charge.
[37] Through its established practice, the practitioner said the PCC had given him a legitimate expectation that the 17 July 2019 meeting would proceed on the basis that
a transcript from the meeting would not be used as primary evidence to establish a charge or the particulars of a charge against the practitioner.
[38] The practitioner had relied on that expectation in circumstances where it was reasonable to do so. For the PCC to depart from that practice would be substantively unfair so the PCC should be estopped from relying on the transcript.
[39] In its reply to the statement of defence, the PCC asserted there had never been a practice of treating engagement by practitioners with the PCC as off the record or “free and frank” engagement. To the contrary, they asserted the investigative nature of the PCC process was clearly “on the record”.
The evidence
[40] A documentary record of the investigative process, decision of the PCC, and application to exclude evidence before the Tribunal was provided through an affidavit from the convenor of the PCC. An affidavit from the Deputy Chief Executive of the Medical Council provided information and certain decisions of the Tribunal in response to the practitioner’s pleas as to legitimate expectation.
[41] For the practitioner, a law clerk from the firm that is acting as instructing solicitor for the practitioner produced correspondence between counsel and the Deputy Chief Executive of the Medical Council over the intended use of interview transcripts.
[42] Also filed for the practitioner was an affidavit from Dr Cookson. In that affidavit, he referred to his understanding of the PCC investigation process based on his involvement with the PCC since 2005 with the MPS. In his affidavit, Mr Cookson referred to the PCC requesting information in relation to s 76 of the Act and occasionally requiring that information be provided under s 77. He said sometimes the PCC will invite medical practitioners to answer questions. Dr Cookson deposed that, at the end of the investigation, the PCC normally writes to the medical practitioner to disclose the documents is has obtained in the course of its investigation. He said the medical practitioner then needs to elect to:
(a) say nothing;
(b) write to the PCC – this could involve written submissions by the medical practitioner and/or their legal counsel; or the voluntary provision of evidence (for example a statement of evidence from the practitioner or additional documents for the PCC to take into account);
(c) have the medical practitioner’s legal counsel appear before the PCC and make oral submissions; or
(d) appear before the PCC (usually accompanied by counsel) and make oral submissions.
[43] Dr Cookson then referred to the way a PCC meeting with practitioners would commonly proceed. He referred to the way the Medical Council has, in communications with the MPS and its counsel, encouraged them to advise practitioners to elect to attend PCC meetings. Dr Cookson understood that “[i]n response to such encouragement” MPS Consultants and its instructed legal counsel have been more likely to recommend that practitioners attend PCC meetings on the basis that attendance could reduce the risk of charges being laid. If MPS/its instructed legal counsel understood that PCC meetings might be used to obtain admissible confessions, Dr Cookson deposed they would have been much less likely to recommend that practitioners attend. Dr Cookson did not recall a PCC ever “cautioning” a medical practitioner about the possibility that something said during a PCC meeting could be used to prove a subsequent charge brought before the Tribunal. Nor did he recall a transcript “being used as primary evidence” in any of the Tribunal proceedings he had been involved with. He went on to say:
14 It has never been my understanding that things said by a medical practitioner during a PCC meeting could be used as evidence to support a Charge against them. I have understood such meetings to be for the purpose of giving a practitioner an opportunity to provide context to the particulars of a PCC’s investigation and to also discuss any personal circumstances or otherwise that they might consider to be relevant to the PCC’s consideration of the matters before it.
15 That said, I have never regarded attending PCC meetings as being without risk for the practitioner. It has always been clear that a record was being made and something said by a medical practitioner:
15.1could be taken into account by the PCC when deciding whether to lay a Charge;
15.2if a Charge were laid, could be further investigated by the PCC or help the PCC determine what evidence it might need to bring; and
15.3might be put to the practitioner during cross-examination.
16 I agree with Ms Hall’s affidavit at [25] to the extent that, for those cases where it is inevitable a Charge will be laid, medical practitioners are likely to be advised there is nothing to be gained by attending a PCC meeting. There are however many cases where the conduct being investigated, while serious, will not necessarily result in a Charge. Where MPS and the legal counsel it instructs consider there to be a chance of persuading a PCC to make one of the recommendations in section 80(2) of the Act instead of laying a Charge, we will often recommend attending a PCC meeting so that the practitioner has the opportunity to demonstrate insight, remorse and sorrow, together with being able to explain the personal or health matters that may be relevant to what happened.
[44] Dr Cookson said he did not regard the comments made by the convenor at the outset of the meeting as making it clear to him that the meeting “was part of the investigation”. Dr Cookson said he had understood a PCC meeting was an opportunity, following the conclusion of a PCC investigation, to make submissions under s 80(4) and to be heard as to all the myriad of factors that might persuade a PCC to respond in one of the ways other than to lay a charge.
[45] In conclusion, Dr Cookson said he had never before been aware “that the PCC might attempt to use the transcript as primary evidence”.
[46] Counsel for both the PCC and the practitioner filed detailed written submissions in support of their respective positions and developed these further during the hearing. These submissions are addressed in the analysis below.
Legal context
[47]Sections 3 is set out below:
3 Purpose of Act
(1) The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
(2) This Act seeks to attain its principal purpose by providing, among other things,—
(a)for a consistent accountability regime for all health professions;
…
[48]The relevant part of s 4 is as follows:
4 Outline
…
(4) Part 4 provides for the establishment by each authority of professional conduct committees to investigate complaints referred to the authority by the Health and Disability Commissioner. Professional conduct committees are also required to investigate the circumstances of certain offences committed by health practitioners. The Part also establishes a single tribunal, called the Health Practitioners Disciplinary Tribunal, to hear and determine charges brought against practitioners by the Director of Proceedings or by a professional conduct committee.
[49]Section 72 of the Act states:
72 Committees may regulate own procedure
(1) A professional conduct committee may regulate its procedure as it thinks fit.
(2) A professional conduct committee must adopt and follow procedures that will ensure that, in relation to each matter referred to the committee, the health practitioner who is the subject of the reference, the responsible authority, and any complainant, are each kept informed about the progress of the reference.
(3) Subsection (1) is subject to subsection (2) and the other provisions of this Act, to the rules of natural justice, and to any regulations made under this Act.
[50]Section 76 states:
76 Professional conduct committees may receive evidence
(1) A professional conduct committee may receive as evidence any statement, document, information, or matter that, in its opinion, may assist it to deal effectively with the subject of its investigation, whether or not that statement, document, information, or matter would be admissible in a court of law.
(2) In particular, a professional conduct committee may hear oral evidence and receive statements and submissions from any or all of the following persons:
(a)the health practitioner who is the subject of the committee’s investigation:
(b)any employer of that health practitioner:
(c)any person in association with whom that health practitioner practises:
(d)if the matter referred to the committee is a complaint, the complainant:
(e)any clinical expert.
(3) Despite subsections (1) and (2), a professional conduct committee must give the health practitioner who is the subject of the committee’s investigation a reasonable opportunity to present evidence on each matter, including any further matter, that is referred to the committee under section 68 and forms part of the investigation.
(4) Any complainant may be supported by a person nominated by the complainant; and that person may, with the leave of the committee, be heard at a hearing.
(5) A professional conduct committee may require that any evidence it receives be supported by a statutory declaration in the manner provided for by section 9 of the Oaths and Declarations Act 1957.
(6) Subsection (5) does not apply to a submission made by the health practitioner or a complainant under section 80(4).
(7) No civil or disciplinary proceedings lie against any person in respect of any evidence given, or statements or submissions made, under this section by that person, unless the person has acted in bad faith.
[51]Section 77 states:
77 Powers to call for information or documents
(1) If the conditions stated in subsection (2) are satisfied, a professional conduct committee may, by notice in writing, require any person to produce to the committee any papers, documents, records, or things.
(2) The conditions referred to in subsection (1) are that—
(a)the members of the committee believe, on reasonable grounds, that the exercise of the powers conferred by that subsection is necessary to enable the committee to carry out its investigation; and
(b)the person to whom a notice under that subsection is to be given has failed to comply with a previous request to produce to the committee, within a reasonable time, the papers, documents, records, or things required by the notice; and
(c)the members of the committee believe, on reasonable grounds, that—
(i)it is not reasonably practicable to obtain the information required by the committee from another source; or
(ii)for the purposes of the investigation, it is necessary to obtain the papers, documents, records, or things to verify or refute information obtained from another source.
[52]And, s 80:
80 Recommendations and determinations of professional conduct committee
(1) Within 14 working days after completing its investigation into a matter concerning a health practitioner, the committee must make—
(a)1 or more of the recommendations specified in subsection (2); or
(b)one of the determinations specified in subsection (3); or
(c)both.
(2) The recommendations referred to in subsection (1)(a) are—
(a)that the authority review the competence of the health practitioner to practise his or her profession:
(b)that the authority review the fitness of the health practitioner to practise his or her profession:
(c)that the authority review the practitioner’s scope of practice:
(d)that the authority refer the subject matter of the investigation to the Police:
(e)that the authority counsel the practitioner.
(3) The determinations referred to in subsection (1)(b) are—
(a)that no further steps be taken under this Act in relation to the subject matter of the investigation:
(b)that a charge be brought against the health practitioner before the Tribunal:
(c)in the case of a complaint, that the complaint be submitted to conciliation.
(4) The committee may not make a recommendation or determination unless the health practitioner concerned and any complainant has each been given a reasonable opportunity to make written submissions and be heard on the matter under investigation, either personally or by a representative; and for that purpose the committee must give the health practitioner and the complainant written notice of—
(a)the latest date by which the committee will receive written submissions from the health practitioner and the complainant; and
(b)the date on which the committee will hear persons who are entitled to be heard and wish to be heard.
[53]Section 83 of the Act states:
83 Restriction on information obtained by professional conduct committees
A professional conduct committee or a member or former member of the committee or a person who assists or has assisted the committee may use or disclose any information obtained in the course of the performance of the committee’s functions only for the purposes of this Act.
[54] Section 90 referred to the provisions in sch 1 applying to the Tribunal and its proceedings. Relevantly, sch 1, cls 5 and 6 provide:
5 Procedure of Tribunal
(1) Subject to this Act and to any regulations made under this Act, the Tribunal may—
(a)regulate its procedure in any manner it thinks fit; and
(b)prescribe or approve forms for the purposes of hearings.
(2) The Tribunal must publish any rules of procedure it makes.
(3) The Tribunal must observe the rules of natural justice at each hearing.
6 Evidence
(1) The Tribunal may receive as evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.
(2) Subclause (1) is subject to clause 5(3).
(3) The Tribunal may take evidence on oath, and for that purpose any member or officer of the Tribunal may administer an oath.
(4) The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.
(5) The Evidence Act 2006 applies to the Tribunal in the same manner as if the Tribunal were a court within the meaning of that Act.
(6) Subclause (5) is subject to subclauses (1) to (3).
[55] The way in which the Tribunal had to apply cl 6 was stated by Collins J in W v Health Practitioners Disciplinary Tribunal:3
[105] This approach to the interpretation of cl 6 leads to me [sic] conclude that it should be applied by following a two-step process:
(1)First, the Tribunal should assess whether the evidence would be admissible under the Evidence Act.
(2)Second, the Tribunal may, nonetheless, in its discretion, admit the evidence if that evidence may assist the Tribunal to deal effectively with the matters before it.
This approach is consistent with the purposes of the Act that I have explained at [68].
[106] The discretion at the second step must be exercised judicially. The Tribunal has a wide ambit to determine what evidence will assist it, as demonstrated by the use of the phrase “that may in its opinion assist it” (emphasis added). However, just because the scope of cl 6(1) is wide, does not mean that the Tribunal should exercise its discretion to admit evidence in all cases. The Tribunal must exercise its discretion by taking into account:
(1)the principles and purpose underlying the Act;
(2)the particular circumstances presented by the proceeding and the evidence sought to be admitted; and
(3)the importance of the principles underlying the applicable rule in the Evidence Act.
[107] The rules of natural justice provide a hard limit on the discretion of the Tribunal because of cl 6(2), which makes the discretion in cl 6(1) subject to the requirement to “observe the rules of natural justice at each hearing” referred to in cl 5(3). But even in the absence of that provision, the Tribunal would be required to observe the principles of natural justice. It will inevitably be unnecessary to engage in a natural justice analysis at this stage because, for the reasons I have already addressed, it is appropriate to deal with natural justice considerations first in cases where they arise.
[56] On appeal, the Court of Appeal agreed with Collins J’s analysis. In doing so, they pointed out “the precise content of a decision-maker’s natural justice obligations will vary depending on the subject matter”.4
[57]The Court held that:5
3 W v Health Practitioners Disciplinary Tribunal [2019] NZHC 420, [2019] 3 NZLR 779.
4 A Professional Conduct Committee of the Nursing Council of New Zealand v Health Practitioners Disciplinary Tribunal [2020] NZCA 435 at [36], citing Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [3.3.27].
5 At [38].
… to be properly exercised, the cl 6(1) discretion to admit evidence not otherwise admissible in a court of law in our view requires the Tribunal to make its discretionary decision knowing, and having assessed the significance of, the fact that such evidence is inadmissible under the Evidence Act. That exercise will give a principled basis to its decisions, providing the reasons the Judge said were required, when it admits evidence pursuant to that discretion.
…
[58]The Court of Appeal said:
[47] In summary, the overall effect of cls 5 and 6 of sch 1 of the Act is as follows:
(a) That evidence is inadmissible under the Evidence Act does not in and of itself make it inadmissible before the Tribunal.
(b) Notwithstanding, the Tribunal must consider whether evidence would be admissible under the Evidence Act before considering whether to exercise its discretion under cl 6(1).
(c) That general admissibility standard is broad and reflects the principal purpose of the Act, of protecting the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
(d) The discretion reflected in that standard is limited by what the Judge referred to as the “hard limit” found in cl 5(3). Moreover, for that discretion to be properly exercised, the Tribunal needs to be aware of, and assess the significance of, the reasons cl 5(3) applies. Hence the importance of a question as to the admissibility of a hearsay statement being assessed by reference to the relevant provisions of the Evidence Act, informed by the natural justice interests those provisions reflect, and in the specific context in which the issue arises.
The interpretation of s 76(7)
[59] Fundamental to the Tribunal’s decision that to admit evidence of the transcript would be a breach of natural justice was the interpretation of s 76(7) of the Act. The Tribunal considered the purpose and interpretation of s 76(7) was to protect the practitioner under investigation and anyone else who provided a statement to the PCC to assist it with its investigation from disciplinary proceedings based on the statement they had provided.6 The practitioner supported the Tribunal’s interpretation of s 76(7).
6 Tribunal decision, above n 1, at [43](b) and [46]-[47].
[60] The first point to note is that s 76 permits the PCC to receive as evidence any statement, document, information or matter that might assist it to deal effectively with the matter under investigation.7 Also, the PCC is obliged to give the practitioner “a reasonable opportunity to present evidence” on the matters under investigation.8
[61] The letter from the Medical Council of 19 December 2017 referred the practitioner to the concerns arising from information received from the Ministry of Health on 23 August 2017, the practitioner’s responses, and of the Council’s decision to refer the matters of concern to a PCC for investigation. With that letter, they provided him with a brochure which put the practitioner on notice that “the PCC may hear evidence in person or receive written statements from people, including you, your employer, your colleagues, the notifier, and an expert adviser”. The brochure advised that “if you are investigated by a PCC”, the possible outcomes of the process include the PCC drafting a charge and laying it before the Tribunal.
[62] It is implicit within s 83 that a PCC member may disclose information obtained in the course of its investigations for the purposes of the Act. Pursuant to s 80(3), a PCC can determine that a charge be brought against the health practitioner before the Tribunal. The release of information by a PCC member to support a charge under the Act would be for the purpose of the Act.
[63] Dr Cookson deposed that he was not aware of cases where what was said in a PCC meeting by a practitioner had been used as the “primary evidence” to support a charge before the Tribunal. In referring to “primary” evidence, I infer he was referring to such evidence which was essential to prove a charge before the Tribunal, rather than evidence which augmented other evidence that might be sufficient to prove the charge. He did not say that, through his involvement in the PCC meeting process, he understood what was said in those meetings could not be used as evidence in subsequent proceedings. He said it had always been clear that what a practitioner had said in a meeting with a PCC could be put to the practitioner in cross-examination.
7 Health Practitioners Competence Assurance Act 2003, s 76(1).
8 Section 76(3).
[64] Dr Cookson deposed that, in supporting practitioners appearing before a PCC, he knew there was risk involved for the practitioner and that everything was recorded. Consistent with that awareness, it was his experience that practitioners who knew they would be charged would not meet with a PCC during the investigative process or make submissions as to potential outcomes at the conclusion of it, pursuant to s 80.
[65] I agree with the submission from counsel for the practitioner that the combined effect of ss 76 and 77 of the Act is that PCCs have the power to compel practitioners to produce documentation to assist their investigations but they have no such authority to compel practitioners to provide oral or written evidence or submissions. This means that oral evidence given by a practitioner pursuant to s 76 is voluntary.
[66] I agree with the submission for the PCC that s 76 serves to empower PCCs to gather evidence.
[67] The submission for the practitioner was that when s 76 is viewed as a whole its purpose is to allow the PCC to take verified evidence from witnesses but, at the same time, to assure persons with relevant information, including the practitioner under investigation, that they can participate in PCC processes without the fear of proceedings arising from that contact.
[68] I do not consider the purpose of s 76(7) is to protect the health practitioner being investigated from any disciplinary proceedings that might result from the statements provided to the PCC under s 76 of the Act.
[69] In s 76, in several instances, the legislation expressly considered and provided for the way the section was to be applied to the practitioner under investigation.9
[70]In contrast, s 76(7) is, in general terms:
(7) No civil or disciplinary proceedings lie against any person in respect of any evidence given, or statements or submissions made, under this section by that person, unless the person has acted in bad faith.
9 See s 76(1) in conjunction with ss76(2)(a), 76(3), 76(5) and 76(6).
[71] Those terms are identical to the provisions in other sections which are clearly intended to protect persons against disciplinary proceedings or civil proceedings such as for defamation.10 That protection is provided not because such people are, themselves, already subject to disciplinary proceedings or investigation, but where they have provided to relevant authorities information for the purpose of ensuring there would be appropriate investigation into bona fide concerns about a health practitioner’s conduct or fitness to practice.
[72] The Tribunal’s interpretation of s 76(7) did not accord with the principal purpose of the Act, of protecting the health and safety of members of the public by providing the mechanisms to ensure that health practitioners are competent and fit to practice their professions.11
[73] The Tribunal’s interpretation would allow a practitioner to appear before the PCC and admit to misconduct in ways the PCC might not be able to prove through other evidence, which the Tribunal would be unable to consider or take into account when dealing with a charge of professional misconduct against that practitioner.
[74] I also consider the Tribunal erred and had regard to an irrelevant consideration in stating that its interpretation of s 76(7) assisted in ensuring the burden of proof on a charge remained on the PCC.12 That burden of proof would have remained whatever the strength of the evidence against the practitioner and whatever admissions he might have made to the PCC.
[75] Even if s 76(7) could be interpreted in the manner the Tribunal did, I am satisfied, in all the circumstances of this case, neither the practitioner nor his legal advisers agreed to participate in the PCC meeting with any expectation that, because of s 76(7), what he said could not be used as evidence to support a prosecution before the Tribunal. The application for exclusion was made on the grounds that the transcript had been provided by the practitioner pursuant to his rights under s 80(4) and that the
10 See ss 34(4), 45(6) and 62(1).
11 Section 3.
12 Tribunal decision, above n 1, at [47].
PCC had failed to advise him they were obtaining evidence pursuant to s 76(2) of the Act.
[76] In written submissions for the practitioner in this Court, counsel confirmed that the application advanced for the practitioner before the Tribunal was that the evidence was not obtained by the PCC pursuant to s 76 of the Act and could not be treated as such, that it was obtained consistent with a meeting convened under s 80(4) of the Act.
[77] Mr McClelland made the point during submissions before me that it was only when counsel for the PCC was making its submissions in this Court that the PCC said the meeting should be treated as a meeting convened for the purpose of obtaining evidence pursuant to s 76.
[78] There had been cases before this meeting where the transcript of what was said at a meeting of a practitioner with the PCC had been presented as evidence before the Tribunal without challenge, as discussed below at [141]-[147]. The meeting was not expressly arranged as a meeting pursuant to s 76. In submissions, the PCC says it should be considered as a meeting pursuant to s 76. If it was, I have held that s 76(7) should be interpreted to mean that statements made by a practitioner in these circumstances can be put in evidence by the PCC to prove a charge.
[79] In applying sch 1, cl 6 of the Act (which relates to the evidence that may be received by the Tribunal), the Tribunal first had to consider whether the evidence was admissible in terms of the Evidence Act. In that regard, they determined the evidence had to be excluded because s 76(7) did not permit it to be used where it was not alleged there had been bad faith on the part of the practitioner.13 I have found that was an error of law.
The privilege to avoid self-incrimination and the argued need for a NZBORA- type caution
[80] In deciding to exclude the evidence, the Tribunal also had regard to its finding that the statements made to the PCC had been obtained despite the practitioner’s right
13 At [54].
to refrain from making any statement through the privilege against self-incrimination, and without his waiving that right.14
[81] I accept that the practitioner might have thought that, in agreeing to meet with the PCC and to answer questions asked of him, he would also be able to make submissions as to how the PCC might deal with the matter at the conclusion of their investigation. Prior to the meeting, at earlier stages of the process, he had been given copies of ss 76 and 80. Earlier in the investigation and before it was concluded, he was advised in writing by a letter dated 3 May 2018 that he would have the opportunity to be heard and to make submissions in terms that would have been consistent with his being advised of his rights under s 80(4).
[82] The PCC sent a letter dated 27 February 2019 to the practitioner’s then counsel. With it were further documents obtained by the PCC during its investigation. It advised that the PCC had referred various matters to the Council for consideration under s 68(4) of the Act. The letter then said:
Accordingly, following the conclusion of that process the PCC will offer you the opportunity to meet with the PCC, or alternatively provide written submissions on this information, and the matters under investigation.
[83] The practitioner and his then legal adviser could have taken this as referring to his right to make submissions as to the ultimate determination or recommendation of the Tribunal as provided for in s 80(4) after the completion of the investigation, but that was not the context in which the meeting was arranged or proceeded.
[84] Section 80 is about the recommendations or determination the PCC might arrive at after completing its investigation.15 Neither the practitioner nor his counsel could reasonably have thought the PCC had completed its investigation when the practitioner agreed to meet with it.
[85] On 16 October 2018, a legal adviser to the PCC wrote to counsel then representing the practitioner advising that the PCC considered it necessary for them to meet or speak with the practitioner’s wife and son. The letter advised this would
14 At [46].
15 Health Practitioners Competence Assurance Act, s 80(1).
primarily be in relation to medications the practitioner had prescribed for them. The letter indicated the PCC wanted to do this as part of its investigation.
[86] On 7 December 2018, the convenor of the PCC wrote to the practitioner’s wife and son, advising them that, as part of its investigation in relation to a doctor, the PCC would like to speak to both of them. On 13 February 2019, the practitioner’s counsel advised the PCC that the practitioner’s wife did not wish to speak to them.
[87] On 12 April 2019, the deputy registrar of the Medical Council advised the practitioner’s then counsel that, in accordance with s 68(4) of the Act, it was requesting the PCC add to matters it was currently investigating two further particulars of concern. These related to the practitioner allegedly prescribing medications to his family for his own use and whether he had misled the Council in his explanations for prescribing to family members. The letter referred to an email communication from the practitioner’s then counsel which advised that he did not oppose the new particulars being added to his existing charge.
[88] The practitioner’s present counsel submitted that, on 27 February 2019, the senior legal adviser at the Medical Council invited the practitioner, through his counsel, to meet with the PCC. She followed up her invitation by way of an email to counsel stating “further to our telephone conversation on Friday, the PCC are available to meet with [the practitioner] on Monday 20 May at 10.30 am”.
[89] In the transcript of the meeting (on the heading of the transcript rather than in verbal conversation), the practitioner is described as “interviewee”. At the outset of the meeting, Mr McClelland informed the PCC that the practitioner had provided a letter of resignation to the District Health Board (DHB) and the practitioner would not be answering any questions as to matters concerning his son.
[90] As to that, Mr McClelland said “for the purposes of this interview, this investigation, he will not be answering any questions relevant to that issue”.16
16 Emphasis added.
[91] The convenor confirmed there had been disclosure of all documents the PCC had and then said:
So, today, … it’s really to hear your side of the story, because, you know, we’ve got information from other people, and we need to know from you really what you think is important for us to be aware of. I guess it’s the context behind the bare information, and we see this as your opportunity to respond to the issues that we raised, so we want you to sort of tell us what you need to, but we have specific questions that we are going to kind of be asking you to try and get clarity around. …
[92] The convenor indicated they anticipated this process might take an hour and a half but, at the end, the practitioner could make submissions or raise anything with them. The convenor said they would be going through the allegations and the particulars as to the concerns over the prescribing of medication. She referred to the options that would be available at the end of matters, including reference to the Tribunal and consideration of his fitness to practice, which she said “obviously is going to be influenced by the information you’ve given us today”.
[93] There was no dispute that, at the outset of the meeting, the convenor stated that the meeting was being recorded. She explains that the recording would be typed and that document would be made available to the practitioner as disclosure.
[94] The meeting proceeded with the PCC obtaining information from the practitioner about his personal situation. The convenor then said they wanted to move on to start looking at some of the prescribing. Different members of the PCC questioned the practitioner on this matter. In the course of that questioning, the practitioner said he had issued prescriptions for his wife but had used some of that medication for himself, and he had misled the Council about that. The PCC, through the convenor, indicated they wanted to ask more questions about this. In the course of that questioning, Mr McClelland intervened at points to suggest the questions could be framed more fairly. At another point in the questioning, Mr McClelland intervened to suggest an explanation for what might have occurred. Members of the PCC said they were most interested in finding out what the practitioner was thinking at the time. Mr McClelland said it would be acceptable for the PCC to proceed with questioning in that way.
[95] Towards the end of the meeting, the convenor asked Mr McClelland if there was anything he wanted to say. Mr McClelland did not comment at that stage but said he might wish to make a submission “once we’ve checked the transcript”. However, he said that, in doing so, they would be focusing on the practitioner’s retirement and those sorts of issues.
[96] The convenor discussed a timeframe for the submissions to be lodged given the availability of those involved and confirmed Mr McClelland might have submissions “but they are coming at a later date”. The legal adviser, to clarify timing and next steps, confirmed the PCC would be obtaining a transcript, reviewing the draft and sending it to the practitioner for review. In parallel, the PCC would be obtaining clarification from the Ministry of Health and there would then be submissions after September.
[97]In her affidavit filed for these proceedings, the convenor said:
24. The PCC made it clear to [the practitioner] that the meeting was part of the investigation and that any determination/recommendation by the PCC would depend in part on the information given at the meeting.
That is a fair summary of how the meeting proceeded.
[98] With the way the meeting had been arranged and proceeded, I do not consider the PCC represented to the practitioner or his counsel in any way that what he said during the meeting would be privileged and could not be used in evidence against him if ultimately, at the conclusion of the PCC’s investigation, the PCC did decide to lay charges against him.
[99] Neither as a matter of law nor in terms of general fairness was the PCC required to caution the practitioner that whatever he said might be used in evidence against him.
[100] It was submitted for the practitioner that, in short, the breach of natural justice arriving from the PCCs actions was “not so much its failure to give a police style caution, rather it is its failure to make clear to [the practitioner] the [statutory] basis on which its meeting with him was to be held and the use to which the transcript could/would be put”.
[101] The right to the presumption of innocence and the right to silence, consistent with the NZBORA, are for the minimum standards of criminal prosecution. The caution that what someone says may be used in evidence is part of the advice Police must give when they have sufficient evidence to charge a person with an offence or the person is in custody. The caution is required pursuant to the Chief Justice’s Practice Note issued on 16 July 2007. Even in the criminal context, a failure to give the required caution will not inevitably mean that statements made by the person being interviewed would have to be excluded as evidence in subsequent criminal proceedings. In such situations, a Court would still have to decide whether exclusion of that evidence was proportionate to the impropriety that had occurred through the failure to give the required caution.17
[102] In Z v Dental Complaints Assessment Committee, when explaining the standard of proof in disciplinary proceedings, Elias CJ for the Supreme Court said:18
Consistent with its purpose of public protection, the Act does not extend to those subject to its disciplinary processes all of the protections afforded to a defendant at a criminal trial. This emphasises the significant differences in the two types of proceedings. The Tribunal is engaged in an inquiry rather than a trial. It can receive evidence that would not be admissible in a court of law. It must observe the rules of natural justice, but is mandated to take an inquisitorial approach in doing so. The statutory scheme reflects the long established view that proceedings such as those before the Tribunal are not criminal in nature. A flexible application of the civil standard of proof is entirely consistent with these features of the Act, which are typical in governing statutes regulating occupational disciplinary proceedings.
[103] The Tribunal found that, effectively, the practitioner had a privilege against self-incrimination, which had been breached.19 To reach that conclusion, they had to consider whether the privilege would have been available in the circumstances he was in when speaking to the PCC.
[104]Section 60(1) of the Evidence Act provides:
60 Privilege against self-incrimination
(1) This section applies if—
17 Mathew Downs (ed) Cross on Evidence (online ed, Lexis Nexis) at [EVA 30.3].
18 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [115].
19 Tribunal decision, above n 1, at [44]-[46].
(a)a person is (apart from this section) required to provide specific information—
(i)in the course of a proceeding; or
(ii)by a person exercising a statutory power or duty; or
(iii)by a Police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b)the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
[105] The privilege is available only when a person is required to provide specific information, s 60(1)(a) makes this very clear. It is directed at testimonial compulsion.20 In Cropp v Judicial Committee, the Supreme Court was concerned with whether a requirement for a jockey to provide a urine sample which could provide evidence of a criminal offence was in breach of the privilege of self-incrimination.21 The issue did not relate to statements that had been made by someone to an investigative body. Nevertheless, the Supreme Court said the appellant’s argument:22
… was unsupported by reference to any authority and must be rejected. All the authorities are in fact the other way. Wigmore explains that the privilege against self-incrimination is intended “to prevent the use of legal compulsion to extract from a person a sworn communication of his knowledge of facts which would incriminate him”. It is directed at testimonial compulsion.
[106] In forming a view as to whether any criminal proceedings are likely to be commenced and, if so on what charges, the civil court has to proceed on a realistic assessment of what charges are likely in practice, rather than possible in theory.
[107] “Incriminate” is defined in s 4 (see also “self-incrimination”). The definition, when inserted into s 60(1)(b), creates a broad protection if the provision of information would be “reasonably likely to … increase the likelihood of … the prosecution of …” the privilege holder.23
20 Cross on Evidence, above n 17, at [EVA 60.4].
21 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774.
22 At [47], citing Wigmore on Evidence (McNaughton revision, 1961), Vol 8, § 2263.
23 See Simon France (ed) Adams on Criminal Law: Evidence (online ed, Thomson Reuters) at [EA60.02].
[108] Therefore, information that would not, in practice, lead to charges is not reasonably likely to increase the likelihood of prosecution. There is further support for this in the statement from the Supreme Court in Singh v R:24
Under s 60(1)(b) of the Evidence Act 2006, the privilege against self- incrimination can only be invoked in relation to information which, if provided, would be “likely” to incriminate the person claiming the privilege. The use by the legislature of the word “likely” shows that it intended to confine the privilege to circumstances where the potential for incrimination is “real and appreciable” and not “merely imaginary and fanciful”.
[109] The PCC was investigating concerns only as to whether the practitioner was in breach of professional obligations and regulations, not whether he had committed a criminal offence. At the outset of the PCC’s discussion, the PCC told the practitioner of the options available to them which they would consider at the conclusion of their investigation. Referral of the matter to the Police for investigation of a criminal offence was not one of them. The practitioner told the PCC that he understood what they were saying and that his counsel had been through those potential outcomes with him. During the meeting, the practitioner’s counsel did not at any stage intervene on the basis that, in answering any question, the practitioner might be providing evidence that could support a criminal prosecution. The matters under investigation, looked at objectively, were likely to be more serious for the practitioner professionally than would have been the case were they ever to be the subject of a criminal prosecution.
[110] In speaking to the PCC, as he did, the practitioner was not at risk of providing information that could reasonably lead to or increase the likelihood of his being prosecuted for a criminal offence.
[111] Through s 76(5), a PCC can require evidence it receives to be supported by a statutory declaration. Section 76(6) says this does not apply to a submission made by the health practitioner under s 80(4). The Tribunal considered this consistent with the practitioner retaining a privilege against self-incrimination.25 I consider this was in error.
24 Singh v R [2010] NZSC 161, [2011] 2 NZLR 322 at [31], citing Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 (CA) at 469.
25 Tribunal decision, above n 1, at [43(a)].
[112] Through s 76(6), the Act facilitated the making of submissions as to possible outcomes from a PCC investigation without those submissions having to be supported by evidence in the form of a statutory declaration. Sections 76(5) and (6) did not say that, if a practitioner provided information or made statements to the PCC for the purpose of s 80(4), those statements could not be used as evidence. Submissions made by counsel would likely be inadmissible in terms of the Evidence Act as opinion or hearsay but, if a practitioner chose to personally make statements or answer questions in support of submissions, there was nothing in the Act to suggest such statements or evidence would be privileged.
[113] Dr Cookson’s evidence as to the risks that might exist for practitioners in meeting with the PCC and the way the practitioner’s statements could be referred to in cross-examination did not distinguish between meetings pursuant to s 76 and meetings pursuant to s 80(4).
[114] The practitioner suggests the statements, and thus admissions, the PCC obtained from the practitioner were obtained unfairly because it had not been made clear to the practitioner that the meeting was for the purpose of obtaining a statement from him pursuant to s 76 of the Act and he reasonably thought it was for the purpose of making submissions pursuant to s 80.
[115] For the reasons I have already discussed, I do not consider the practitioner or his adviser did or could reasonably have believed the meeting was for the sole purpose of hearing or receiving submissions as to what course the PCC should take at the conclusion of its investigation (as would be consistent with s 80). Even if he did believe that, he had no reason to think what he might say as to his conduct concerning the matters under investigation would not be used as evidence against him in any proceedings before the Tribunal if the PCC decided to lay a charge before it.
[116] The Tribunal’s interpretation of s 76(7) was not necessary to give effect to the privilege against self-incrimination. I do not consider that, in speaking to the PCC, the practitioner had a privilege in respect of the statements he made to the PCC. He had voluntarily agreed to meet with the PCC. He was not giving evidence on oath. Although he was asked questions by the PCC, he could at any time have chosen not
to answer them. At the outset of the meeting, his counsel had said he would not answer questions on a certain subject. That was accepted and respected by the PCC. He was not at risk of criminal prosecution.26
[117] Accordingly, I find the information provided by the practitioner to the PCC was not obtained unfairly in breach of any right the practitioner might have had to avoid providing that information through any privilege provided by law against self- incrimination.
Conclusion as to whether evidence at PCC meeting obtained unfairly
[118] I do not consider a practitioner, with legal advice, could objectively and reasonably have believed he would be able to appear before the PCC, provide information as to his conduct and reasons for it, and then reasonably anticipate such statements could not be put in evidence to support charges that such information might be relevant to.
[119] I consider the PCC had a right to invite the practitioner to appear before it to assist with its investigation. It had that right pursuant to s 72(1) to regulate its procedure as it saw fit. The meeting did not have to be specifically pursuant to s 76(2). In inviting the practitioner to participate in such a meeting, to respond to the allegations of concern and the information the PCC had obtained, the PCC was acting in accordance with natural justice principles. Giving the practitioner the opportunity speak accorded his right to observance of the principles of natural justice required under the Act and under s 27 NZBORA, namely the right to be informed of the allegations against him and to have the opportunity to be heard as to those allegations.
The Tribunal’s error in not considering whether exclusion of the evidence was proportionate to the impropriety they considered had occurred with the way the practitioner participated in the meeting and gave evidence to the PCC
[120] The practitioner had not established, on the probabilities, that the evidence obtained from him during the meeting with the PCC was obtained in breach of his rights under the NZBORA or otherwise unfairly. However, with the Tribunal’s
26 See discussion at paras [106]-[107].
findings as to that, the Tribunal should have carefully considered whether exclusion of the evidence was proportionate to the impropriety in a similar way as a Court is required to do in the criminal context when applying s 30 of the Evidence Act. The Tribunal’s consideration was limited to their consideration of s 8. At that point, their conclusion as to admissibility under the Evidence Act was based on, what I held to be, an incorrect interpretation of s 76(7). Even if their interpretation had been correct, the Tribunal should have carefully engaged in the required balancing exercise before deciding the evidence would have been inadmissible pursuant to s 8 of the Evidence Act.
[121] In Marwood v Commissioner of Police, the Supreme Court noted that, before enactment of the NZBORA 1990, the general common law position was that illegally obtained evidence was admissible and this applied in criminal and civil cases.27 This had however been qualified in criminal cases through the development of a practice of Judges excluding evidence where its prejudicial effect outweighed its probative value.28 The Supreme Court then referred to relevant provisions of the Evidence Act, specifically ss 7, 8, 11, 12 and 30.
[122] As to s 30, the Supreme Court considered the proceedings they were concerned with under the Criminal Proceed (Recovery) Act 2009 involved only a claim for money and, in particular, to the proceeds of criminal conduct.29 The relevant respondents were not at risk of conviction and imprisonment.30 The Supreme Court disagreed with the Court of Appeal insofar as it had held there was no jurisdiction in civil proceedings to exclude evidence on the ground it was unlawfully obtained.31 They held the real question was whether relief by way of exclusion of evidence was proportionate to the breach of rights.32
[123] I accept the Tribunal was in error in not engaging in this evaluation, having found, wrongly in my view, that the PCC had obtained evidence in breach of the practitioner’s right to natural justice and his privilege against self-incrimination. They
27 Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [20].
28 At [20].
29 At [49].
30 At [49].
31 At [36]-[38].
32 At [50].
did not engage in the evaluation exercise which the Supreme Court has said is necessary. Had they done so, given their finding as to the relevance of the evidence and the purpose of the Act and the disciplinary process, I am satisfied they would have had to conclude that exclusion of the evidence was not proportionate to such impropriety that they thought had occurred.
Consideration of admissibility under s 8 of the Evidence Act
[124] Consistent with the requirement that admissibility of the evidence be first considered in terms of the Evidence Act, the Tribunal did consider s 8. The Tribunal held exclusion of the evidence was required pursuant to s 8.
[125]The authors of Cross on Evidence state:33
Whatever the position before the Evidence Act 2006 was, it is now clear that admitting evidence in a civil proceeding is legally capable of being held to incur a risk that the evidence will have an unfairly prejudicial effect on the proceeding. It is submitted that, since the Court’s task is to do justice to all parties, an unfairly prejudicial effect on an opposing party necessarily prejudices the proceeding as well.
[126] The Tribunal’s express consideration of s 8 was brief. Its determination as to s 8 was predicated on what I have held to be an incorrect interpretation of s 76(7) of the Act.34
[127] The practitioner had participated in the meeting with the PCC voluntarily. Throughout that meeting, the practitioner had the support of both senior counsel and Dr Cookson, who was in attendance through his role with the MPS. It was not suggested that the questioning from the PCC was oppressive or in any way had encouraged the practitioner to provide false information.
[128] There is no suggestion the practitioner did not understand the questions or what he was saying in response. It seems that some of the information he provided to the PCC will be of probative value to the PCC in seeking to prove the charges laid against him. In that sense, it could be said the evidence will be prejudicial to him but it is
33 Cross on Evidence, above n 17, at [EVA 8.8].
34 Tribunal decision, above n 1, at [54].
difficult to see how the evidence could be unfairly prejudicial. This was particularly so in the context of a prosecution before a disciplinary tribunal, brought for the purpose of public protection.
[129] The meeting was part of the investigative process, not the opportunity for the practitioner to make submissions as to what the PCC’s ultimate determination or recommendations should be, as provided for in s 80. The practitioner no doubt hoped that, with his acknowledgment of wrongdoing and cooperation with the PCC, he would be able to persuade the PCC that his admitted conduct would not have to be the subject of a charge before the Tribunal. The fact he was unsuccessful in this does not mean what he said should now have to be ignored by the Tribunal.
[130] I do not consider the way the meeting proceeded was unfair to the practitioner or that it would be unfairly prejudicial for what he said in that meeting to be used as evidence against him on the charges before the Tribunal.
[131] I accordingly find the Tribunal was in error in determining the evidence would have been inadmissible in accordance with s 8 of the Evidence Act as its probative value was not outweighed by the risk that the evidence will have an unfairly prejudicial effect.
The exercise of discretion
[132] However, had the Tribunal been right in deciding the evidence obtained during the PCC meeting was inadmissible in terms of s 8 of the Evidence Act, it would still have had to decide whether, in the exercise of its discretion under sch 1, cl 6(1) of the Act, the evidence should nevertheless be admitted.
[133] The PCC had found the evidence to be relevant. It clearly will be. With the charges before the Tribunal, the PCC is seeking to establish the nature and extent of the practitioner’s prescribing behaviour, which the PCC alleges amounted to professional misconduct. The practitioner will be seeking the most favourable outcome in terms of both proof of the charge he faces and particulars relied on and what action the PCC might take to the extent misconduct has been proved. Exclusion of evidence from the PCC would result in the Tribunal not having all evidence that
would be relevant, both as to the extent of any offending and as to what might be the appropriate outcome if any misconduct is established. A principled exercise of the discretion to admit evidence had to take account of the purpose of the act under which the prosecution was being brought, namely “to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practice their professions”.
[134] In exercising its discretion, the Tribunal considered there was a hard limit on the admission of the evidence pursuant to s 76(7) and what they said would be “the breach of natural justice that would arise in unfairly admitted evidence contrary to the [Act]”.35
[135] There is no dispute that the PCC had to observe the principles of natural justice in the process it adopted.36 The practitioner had been advised of this when he was initially told that the matters of concern would be investigated by the PCC. The same applied to the Tribunal.37
[136] It is not easy to identify just what the Tribunal considered the breach of natural justice would be if the transcript was admitted as evidence.
[137] The situation the Tribunal was confronted with was distinctly different from that in W v Health Practitioners Disciplinary Tribunal.38 In that case the High Court and then Court of Appeal accepted there would potentially be a breach of the principles of natural justice if the evidence in dispute was put before the Tribunal in the manner the PCC proposed. There, the practitioner was facing allegations of sexual misconduct with a client, misconduct of a criminal nature. He denied the allegations. The PCC wished to rely on hearsay evidence of a statement obtained from the complainant to prove the charge. The High Court and Court of Appeal agreed that, without further information as to the complainant’s circumstances, the rights of natural justice had to
35 At [55].
36 Health Practitioners Competence Assurance Act s 90 and sch 1, cl 5(3).
37 Section 72(2).
38 W v Health Practitioners Disciplinary Tribunal, above n 3; and W (CA152/2019) v Health Practitioners Disciplinary Tribunal [2020] NZCA 435 at [39].
allow the practitioner to confront the complainant as a witness and to be able to cross- examine him.
[138] As the Court of Appeal stated, that case was about “the important natural justice right to challenge the truth of a complainant’s allegations by asking questions of the complainant in sworn testimony”.39
[139] Here, the principles of natural justice required that the practitioner be informed of the matters being investigated, the information that had been provided to the PCC and that he have an opportunity to be heard in relation to those matters. The meeting with the PCC gave the practitioner the opportunity to do that and with the benefit of legal advice and his counsel being present.
[140] For all the reasons I have traversed in detail, the Tribunal made an error of law in concluding that to admit the transcript of what the practitioner said in the meeting in evidence would be in breach of natural justice.
Legitimate expectation
[141] As an alternative defence, the practitioner said the PCC should be estopped from relying on the transcript based on principles of legitimate expectation.
[142] This submission was made on the basis that the PCC had an established practice whereby they would invite practitioners whose conduct was the subject of investigation to meet after disclosing information to them, and the purpose of this meeting was to engage in free and frank discussion without the risk that anything said in the meeting could be used as primary evidence to establish a charge or a particular of a charge. Having regard to the information that was provided to the practitioner, Mr McClelland said it was reasonable for the practitioner to rely on the expectation created, and that he did so to his detriment.
39 W (CA152/2019) v Health Practitioners Disciplinary Tribunal (CA), above n 38.
[143] For the PCC, Mr Mount QC helpfully outlined the established principles required for a legitimate expectations claim to succeed.40 He identified the issue in contention as whether there is any factual basis for a claim of legitimate expectation based on established practice of the PCC or a promise that was made to the practitioner in relation to the meeting that was held.
[144] The evidence does not establish the PCC had a practice of not using transcripts of meetings with practitioners as evidence to support a disciplinary charge or the particulars of a disciplinary charge.
[145] The PCC referred to cases before the Tribunal in which the transcript of a meeting between the medical practitioner and the relevant PCC or other information provided by the practitioner to the PCC had been admitted at trial to support the charge without the consent of the medical practitioner.41 For the practitioner, Mr McClelland provided detailed submissions that addressed each of these cases and identified ways in which they were different from the present. They are nevertheless cases where what was said by a practitioner to the PCC during investigations was put in evidence before the Tribunal.
[146] The evidence does not establish the practitioner had relied on such an expectation in meeting with the PCC and responding to their questions. Had he been relying on such an expectation, it would have been reasonable for his counsel to have referred to that at the outset when the convenor told the practitioner that everything that was said during the meeting was being recorded or at the end when the convenor told the practitioner a transcript would be made available to him.
[147] Had there been a legitimate expectation the transcript would not be used in evidence on a charge before the Tribunal and had the practitioner relied on that, I would not have held that for the PCC to depart from such a practice would, in the
40 Citing New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC).
41 Professional Conduct Committee v Dr Adams Health Practitioners Disciplinary Tribunal 612/Med13/270P, 3 March 2014 at [27]; Professional Conduct Committee v Dr Bhatia Health Practitioners Disciplinary Tribunal 344/Med10/151P, 7 December 2010; Professional Conduct Committee v C Health Practitioners Disciplinary Tribunal 203/Psy08/98P, 29 January 2009; Professional Conduct Committee v Singleton Health Practitioners Disciplinary Tribunal.
circumstances of this case, have been substantively unfair to the practitioner. He had chosen to participate in the PCC meeting and to answer questions as he did in the hope of dissuading the PCC from bringing a charge against him. With the PCC deciding to bring a charge, it is highly likely the practitioner will be wanting to rely on the way in which he demonstrated his remorse, accepted responsibility for his actions and cooperated with the investigation in seeking the best outcome for him. It will not be substantively unfair to him or unreasonable for the Tribunal to know what he had to say about the matters under investigation when he was questioned about that by the PCC having agreed to meet with them voluntarily and with his counsel present.
Conclusion as to the admissibility of transcript on judicial review
[148] I accordingly find the Tribunal was wrong in concluding that the transcript of the meeting with the PCC should not be admitted. In the circumstances of this case, it is not appropriate to remit the matter back to the Tribunal for reconsideration. In the judicial review proceedings, I accordingly make a declaration as sought by the PCC that the decision to exclude evidence was erroneous in law. I quash the Tribunal’s decision to that effect.
The issue as to whether a PCC can appeal a decision of the Tribunal on an interlocutory application
[149] In arguing there is no jurisdiction for such an appeal, the practitioner relies on the decision of Judge MacAskill in the District Court in A Complaint Assessment Committee v Dr C.42 His decision arose out of proceedings before the Medical Practitioners Disciplinary Tribunal (the predecessor to the Tribunal) under the then Medical Practitioners Act 1995.
[150] On appeal from a decision of the Tribunal, the Judge was required to deal with an issue as to the PCC’s disclosure obligations as to a complainant’s medical records in proceedings where a practitioner was facing a charge of disgraceful conduct arising out of allegations of sexual misconduct with a 16 year old patient. Earlier in the proceedings, there had been a decision as to this from the Tribunal. That decision was
42 A Complaint Assessment Committee v Dr C DC Christchurch CIV-2007-009-1075, 4 February 2008.
the subject of appeals to the District Court, the High Court, the Court of Appeal and ultimately the Supreme Court.43 At no stage had it been suggested to those courts or by those courts that there was no jurisdiction to hear the appeal because it related to a decision on an interlocutory application.
[151]The rights of appeal under that Medical Practitioners Act were set out in s 116:
116. Rights of appeal –
(1) Any person who is dissatisfied with the whole or any part of -
(a)Any decision or order made in relation to that person under any of sections 18, 27, 32, 36, 41, 45, 46, 52, 54, 57, 60, 61, 64, 81, 82, 103(4), 105 and 110 of this Act; or
(b)Any order made under section 106 of this Act in respect of that person, or any decision of the Tribunal to refuse to make such an order; or
(c)Any decision of the Tribunal on an application made under section 108 of this Act –
may appeal to a District Court against the decision or order.
(2) Where -
(a)Any competence programme or recertification programme is made to apply in respect of a specified medical practitioner; and
(b)That medical practitioner is dissatisfied with the whole or any part of any decision of the Council made under section 62(3) or, as the case may be, section 63(3) of this Act in relation to that programme,
-
that medical practitioner may appeal to a District Court against that decision.
(3) Where -
(a)The Director of Proceedings or a complaints assessment committee lays a charge under section 102 of this Act against a medical practitioner; and
(b)The Director of Proceedings or, as the case may be, that committee is dissatisfied with the whole or any part of any decision or order of the Tribunal relating to that charge -
43 Complaints Assessment Committee v The Medical Practitioners’ Disciplinary Tribunal DC CIV 751/03, 4 August 2003; A Complaint Assessment Committee v Medical Practitioners Disciplinary Tribunal HC Christchurch CIV-2003-761-03, 25 March 2004; A Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 447 (CA); and C v Complaints Assessment Committee [2006] NZSC 48, [2006] 3 NZLR 577.
the Director of Proceedings or, as the case may be, that committee may appeal to a District Court against the decision or order.
[152] The Judge’s decision and reasons for finding the Complaints Assessment Committee had no right of appeal from the Tribunal’s then decision was as follows:44
[9] It is clear, therefore, that a practitioner’s rights of appeal are closely defined, especially with respect to interlocutory matters. There is no right of appeal with respect to procedural points of the kind that formed the basis of the last series of appeals or this appeal. The right of appeal in subsection (2) does not relate to disciplinary proceedings.
Conclusions as to jurisdiction
[10] With respect to the rights of appeal of a Complaints Assessment Committee (“CAC”), the question raised by this appeal is whether the words in paragraph (b) of s116(3), “the whole or any part of any decision or order of the Tribunal relating to the charge”, include an interlocutory order. I am of the opinion that they do not, for the following reasons:
a) Paragraph (a) of subsection (3) speaks of the laying of a charge. The passage in question ends with the words “relating to that charge”. The words “relating to that charge” must be taken to limit the preceding words “the whole or any part of any decision or order of the Tribunal”. If they did not, they would be unnecessary.
b) The context indicates that an appeal under subsection (3) must be an appeal against the final disposition of the charge as distinct from any preliminary or interlocutory determination preceding final disposition.
c) It is unlikely that the Legislature intended to confer on the CAC much wider grounds of appeal with respect to interlocutory matters than are conferred on a medical practitioner.
d) It is more likely that the Legislature intended to confer limited rights of appeal against interlocutory orders on a medical practitioner but no such rights on the CAC.
e) It seems likely that the Legislature intended to limit appeals against interlocutory matters so as to minimise delays with respect to interlocutory appeals of the kind that have occurred in this case.
f) While the correction of procedural error on interlocutory appeals may avoid the overturning of the substantive decision, that is not necessarily a compelling argument for interlocutory appeals. It often happens that ultimately the substantive decision is not affected by the interlocutory issue or at least is not affected to the detriment of the party dissatisfied with the interlocutory order. Furthermore, the appellate courts may be materially disadvantaged
44 A Complaint Assessment Committee v Dr C, above n 42.
by limited or erroneous factual material; it so happens that this is such a case.
g) The absence of an interlocutory appeal does not ultimately prejudice anyone where there is a broad right of appeal against the substantive decision.
[11] None of the decisions in the earlier chain of appeals in this proceeding addresses the question of the jurisdiction of this Court to hear interlocutory appeals. Counsel confirm that the point was not taken at any stage.
[12] For these reasons, I hold that the respondent’s protest as to jurisdiction is properly made and that this Court has no jurisdiction to entertain this appeal.
[153] The provision for an appeal by the director of proceedings or a complaints committee was different from the provisions for an appeal by a practitioner or person the subject of a charge. Section 116(3)(b) provided for the director of proceedings or committee to appeal to a District Court as to “the whole or any part of any decision or order of the Tribunal” relating to a charge under s 102 of the Medical Practitioners Act against a medical practitioner.45
[154] Judge MacAskill said the context indicated that an appeal under subs (3) must be an appeal against the final disposition of the charge as distinct from any preliminary or interlocutory determination preceding final disposition. The Judge did not say precisely what provisions were part of the context for s 116(3) that excluded the right of appeal in respect of interlocutory decision.
[155] The Judge’s reasons for interpreting s 116 as he did seem to relate to what he considered the legislature would have been likely to have intended without referring to Parliamentary material to support this conclusion.
[156] The Judge’s interpretation was ultimately explained by his view that there was not a compelling argument for interlocutory appeals. It was his view that, often, the substantive decision is not affected by the interlocutory issue or at least is not affected to the detriment of the party dissatisfied with the interlocutory order. In his view “the absence of an interlocutory appeal does not ultimately prejudice anyone where there is a broad right of appeal against the substantive decision”.46
45 Emphasis added.
46 A Complaint Assessment Committee v Dr C, above n 42, at [10](g).
[157] The Judge’s rationale for his interpretation does not withstand scrutiny. A decision for instance about discovery or as to evidence that might have been admitted in proceedings could significantly affect the strength of cases either for the prosecuting authority or the practitioner.
[158] In C v Complaints Assessment Committee, the Supreme Court was concerned with the extent to which a complainant could refuse to disclose to the Complaints Assessment Committee, and thus to the Tribunal, documents as to which she could claim medical privilege.47 In this decision, Elias CJ said:
[40] In some cases, the refusal of a complainant patient to give consent may make it unfair to proceed without reference to the confidential material. It may be a ground for stay of the proceedings.
[159] In this case, the PCC accept that, without the evidence, admissibility, as to which is in dispute, the PCC will not be able to prove certain particulars of the charge the practitioner faces.
[160] The PCC argue the Judge ought to have deferred to the implicit position taken by the courts in proceedings preceding A Complaint Assessment Committee v Dr C that an appeal against an interlocutory decision by the Complaints Assessment Committee was available under s 116(3) of the Medical Practitioners Act. They said they had been unable to locate any case citing or affirming the interpretation of s 116(3) adopted by the Judge.
[161] The PCC submit Judge MacAskill’s interpretation should not be followed by this Court and it should not be applied in interpreting s 106(3) of the Act.
[162] As concerns appeals against decisions of the Tribunal in the present day, s 106 of the Act relevantly states:
106 Rights of appeal
(1) A person may appeal to the District Court against any decision or direction of an authority to—
47 C v Complaints Assessment Committee, above n 26.
(a)decline to register the person as a health practitioner with the authority; or
(b)decline to authorise a change to the existing scope of practice of the person; or
(c)decline to issue a practising certificate to the person; or
(d)suspend his or her practising certificate or registration; or
(e)cancel his or her registration with the authority; or
(f)include conditions in the person’s scope of practice or the person’s proposed scope of practice; or
(g)vary any conditions in the person’s scope of practice.
(2) A person may appeal to the High Court against the whole or any part of—
(a)a finding under section 100 in respect of the person; or
(b)an order made by the Tribunal under section 92(4) or section 101 in respect of the person; or
(c)a decision made by the Tribunal on an application by the person under section 94; or
(d)any order made by the Tribunal under section 95 in respect of the person or any decision to refuse to make such an order; or
(e)a decision of the Tribunal on an application under section 99.
(3) A person (being the Director of Proceedings or a professional conduct committee) who has laid a charge against a health practitioner may appeal to the High Court against a finding or decision or order of the Tribunal that relates to the charge.
[163] The rights of appeal for a person other than the director of proceedings or a PCC are limited to rights of appeal against a finding, order or decision made by the Tribunal as to various sections.
[164] The provision for an appeal by the PCC is available “against a finding or decision or order of the Tribunal that relates to the charge”. An order of the Tribunal as to the evidence which may be admitted to prove a charge against the practitioner is a decision that relates to that charge. Accordingly, interpreting s 106(3) as to the ordinary meaning of its words, the PCC did have a right to appeal the Tribunal’s decision on the practitioner’s application to have the transcript of his meeting with the PCC ruled as inadmissible in the proceedings before the Tribunal.
Conclusion
[165] On judicial review, I make a declaration that the decision of the Tribunal ruling evidence of the transcript of the practitioner’s meeting with the PCC inadmissible was erroneous in law. I make an order quashing that decision. I also rule that the Court did have jurisdiction to hear an appeal against the Tribunal’s decision in that regard.
[166] The PCC is entitled to costs on this decision. If no agreement is reached, a memorandum as to costs is to be filed for the PCC within eight weeks. A memorandum in reply for the practitioner is to be filed within two weeks of the filing of the PCC’s memorandum. The PCC may file a further memorandum in reply within two weeks of receiving the memorandum from the practitioner. The memoranda are to be no longer than five pages. I will determine any costs issue on the papers.
Solicitors:
S J M Mount QC, Barrister, Auckland Rice Speir, Downtown Auckland
M C McClelland QC, Barrister, Wellington
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