A v Professional Conduct Committee - [2018] NZHC 1623

INTERIM NAME SUPPRESSION APPLIES TO THE APPELLANT. AN APPLICATION FOR FINAL NAME SUPPRESSION HAS YET TO BE RESOLVED. THE NAMES OF DR A’S PATIENTS

AND FAMILY HAVE BEEN SUPPRESSED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2018-485-81

[2018] NZHC 1623

BETWEEN
A

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing: 28-30 May 2018

Counsel:

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

Judgment:

3 July 2018

JUDGMENT OF SIMON FRANCE J

Introduction

[1] Dr A is a doctor conducting a rural practice in the North Island. He also assists at a skin clinic. The Health Practitioners Disciplinary Tribunal (the Tribunal) found him guilty of professional misconduct in relation to numerous charges. He appeals the findings and the penalty.1 In general terms, and ignoring the specifics, the charges are:

1 A Professional Conduct Committee v [A] HPDT 900/med16/369P, 7 August 2017 [Findings decision]; and 13 December 2017 [Penalty decision].

A v A PROFESSIONAL CONDUCT COMMITTEE [2018] NZHC 1623 [3 July 2018]

(a)prescribing excess amounts of the controlled drug pethidine to a specific patient;

(b)improperly treating and prescribing drugs for family, colleagues and other persons; and

(c)ordering excessive amounts of the drug diazepam (Valium) for the purpose of diverting or misusing the medication.

[2] The findings were a mixture. The charges regarding pethidine and diazepam were found to be established, and meriting sanction. Likewise, for a charge of prescribing drugs to his wife. Other than the occasional particular, all other allegations were held to have been established but not individually meriting sanction. However, there was a conclusion that cumulatively these allegations also merited sanction.

[3] There was an extensive agreed summary of facts in which almost all the prescribing, treatments and the ordering of medicines was accepted. The debate was around the propriety of these actions.

Approach to the appeal

[4] Counsel were apparently agreed on the correct approach, but there were nevertheless differences at least in emphasis. The situation is however clear. Section 109(2) of the Health Practitioners Competence Assurance Act 2003 (the Act) states that it is an appeal by way of rehearing. This means that the appellate court is to form its own view, although an appellant must still show the decision under appeal is wrong.2

[5] The decision under appeal follows the hearing of evidence at which the Tribunal had the opportunity to observe the witnesses. Here also the Tribunal is an expert body and deference is appropriate in terms of its judgments on matters such as the appropriateness of actions and treatments, and the seriousness of any breach. The

2 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5]; and Cole Professional Conduct Committee of the Nursing Council of New Zealand [2017] NZHC 1178 at [30].

Court obviously is not expert in such matters, although this should not be overstated both because there will…

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 1623
Decision Date: 3 July 2018

CaseChat Overview and Summary

The appeal by Dr A against findings of professional misconduct by the Health Practitioners Disciplinary Tribunal was heard over three days and judgment delivered on 3 July 2018. The appellant was a rural practitioner. The charges against him were in relation to prescribing excessive amounts of the controlled drug pethidine to a specific patient, improperly treating and prescribing drugs for family, colleagues and other persons, and ordering excessive amounts of the drug diazepam for the purpose of diverting or misusing the medication. The appeal was advanced on the basis that the Tribunal had made a number of fundamental errors such that the decision could not be allowed to stand. It was then submitted that given the paucity of the evidence that was presented, and the relatively low-level nature of some of the allegations, the Court should not refer the matter back. Separately, it was submitted that the evidence on Charge 7 was insufficient and that charge should be dismissed. The Court held that to varying degrees these challenges were valid. The most important was that the Tribunal had made significant errors in relation to the burden of proof. The Court also considered the Tribunal had failed sufficiently to explain its conclusions in relation to why on several charges the “case was made out” and related to this, its reasoning on the cumulative charge. The Court considered it clear the Tribunal had misunderstood the correct use of its own experience, but was less sure this had had any actual impact. The Court held that the following charges were proved: Charge 1, inappropriate prescribing, Charge 5, being improper treatment of his wife and other members of his family, and Charge 7 being the ordering of large quantities of a controlled drug to facilitate an individual method of doubtful legitimacy. All other charges and particulars were quashed.

Orders