A v A Professional Conduct Committee - [2018] NZHC 2158

THE NAME OF THE MEDICAL PRACTITIONER AND

ALL PATIENTS MENTIONED IN THIS JUDGMENT, TOGETHER WITH IDENTIFYING DETAILS, ARE SUBJECT TO

FINAL SUPPRESSION ORDERS.

A LIMITED EXCEPTION IS NOTED IN [38].

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-81

[2018] NZHC 2158

BETWEEN
A

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing: On Papers

Counsel:

M F McClelland QC and K M Wills for Appellant H J P Wilson and A James for Respondent

Judgment:

22 August 2018

JUDGMENT OF SIMON FRANCE J

(Penalty Decision)

[1] On 3 July, I allowed in part an appeal by Dr A against findings of the Health Practitioners Disciplinary Tribunal (the Tribunal).1 Some findings against Dr A were quashed, others confirmed. The decision left three matters to be resolved:

(a)whether the amended factual finding on charge 7 supported a conclusion that sanction was merited;

1 A v Professional Conduct Committee [2018] NZHC 1623.

A v A PROFESSIONAL CONDUCT COMMITTEE [2018] NZHC 2158 [22 August 2018]

(b)what changes were needed to the penalty imposed by the Tribunal; and

(c)whether there should be suppression of Dr A’s name.

[2] The parties wished these issues to be addressed by the Court rather than being referred back to the Tribunal.

Charge 7

[3] Dr A was charged with ordering excessive quantities of diazepam (Valium) and, cumulatively, so ordering for the purposes of diverting or misusing such medicine. The quantities ordered by Dr A over the period significantly exceeded normal expectations. Dr A explained the use by advising that he carried out skin treatments in a surgery on his own and he had developed a practice of preparing a diazepam preparation to use in an emergency should one arise. He had done this since an incident many years earlier where he found the more normal solutions used to be ineffective. At the end of each week he disposed of it.

[4] The Tribunal rejected his evidence and found both aspects of the charge established.2 On appeal, I held that the prosecution failed to prove the second component of improper purpose. I accepted, however, the Tribunal’s conclusion that Dr A’s practice was unsound, and represented a waste of the diazepam. On that limited basis, I concluded the charge of excessive ordering made out.

[5] The Professional Conduct Committee (the Committee) submits the charge, as now established, constitutes malpractice and is likely to bring discredit to the profession. It is further submitted it merits sanction. The matters focused on are that:

(a)diazepam is a Class C controlled drug and thereby subject to greater levels of control because of the risks it poses. It is submitted Dr A breached the regulations concerning the drug in the manner it was stored, prescribed, recorded, and used (in the sense of left lying around

2 Professional Conduct Committee v [A] HPDT 900/Med16/369P, 7 August 2017 [Findings decision].

in the emergency syringe for the week). I observe none of these matters were the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2158
Decision Date: 22 August 2018

CaseChat Overview and Summary

In this case, the appellant, a medical practitioner, appealed against findings made by the Health Practitioners Disciplinary Tribunal regarding misconduct. The tribunal had found the appellant guilty of ordering excessive quantities of diazepam, inappropriately prescribing pethidine to a patient, and treating family members contrary to Medical Council rules. The tribunal imposed a suspension, fine, and conditions on the appellant's practice. The court was required to decide whether the misconduct merited sanction and, if so, what the appropriate penalty should be. Additionally, the court had to consider whether to suppress the appellant's name.

The court found that the misconduct did not amount to malpractice or conduct likely to bring the profession into disrepute, and therefore did not merit sanction. The court noted that the primary purpose of sanctions is to protect public health and safety by holding practitioners to high standards. The court also rejected the argument that uncharged breaches of regulations could inform the assessment of whether the established conduct merits sanction. Regarding the penalty, the court determined that suspension was not required, given the absence of harm and the appellant's compliance with conditions. The court imposed a fine, censure, and conditions on the appellant's practice for a term of two years.

The court granted final suppression of the appellant's name, subject to the caveat that the Medical Council Register would still list the doctor's name and conditions under which he practices. The court found that the privacy of the appellant's family's medical history was of high value and outweighed the public interest in transparency and accountability of the disciplinary process. The court concluded that the established findings should be dismissed, and the penalty should be censure, a fine of $8,000, 25 per cent of the investigation costs, and conditions on the appellant's practice for two years. Final suppression of the appellant's name, subject to the caveat in the Medical Council Register, was also ordered.

Orders