ANG v Professional Conduct Committee - [2016] NZHC 2949

NOTE: TEXT OF JUDGMENT CONTAINS SOME REDACTIONS

ORDER PROHIBITING PUBLICATION OF THE APPELLANT'S NAME AND/OR IDENTIFYING DETAILS, INCLUDING WHERE HE LIVES AND WHERE HE WORKS, PURSUANT TO S 95(2)(D) OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001374 [2016] NZHC 2949

IN THE MATTER OF
the Health Practitioners Competence

Assurance Act 2003

BETWEEN

ANG Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing: 26 October 2016

Appearances:

A H Waalkens QC for Appellant
A K Miller for Respondent

Judgment:

7 December 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty
On 7 December 2016 at 3.00 pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/Counsel:
DLA Piper, Wellington/A H Waalkens QC, Auckland
Claro Law, Wellington

ANG v A PROFESSIONAL CONDUCT COMMITTEE [2016] NZHC 2949 [7 December 2016]

Introduction

[1] The appellant, X, has appealed against the Health Practitioners Disciplinary Tribunal’s decision to decline an application for permanent name suppression. In December 2015, a Professional Conduct Committee (PCC) laid a disciplinary charge before the Health Practitioners Disciplinary Tribunal (the Tribunal) alleging that X, a registered medical practitioner, had conducted himself in a dishonest and/or unprofessional manner that amounted to professional misconduct.

Jurisdiction

[2] The Health Practitioners Competence Assurance Act 2003 (the Act), in Part 5 provides a right of appeal to the High Court against refusal to grant permanent name suppression:

106 Rights of appeal

(2) A person may appeal to the High Court against the whole or any part of –

(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.

[3] The High Court on hearing the appeal may confirm, reverse or modify the decision, and make any order that could have been made:

109 Procedure on appeal

(3) On hearing the appeal, the appropriate court—

(a) may confirm, reverse, or modify the decision or order appealed against; and

(b) may make any other decision or order that the person or body that made the decision or order appealed against could have made.

[4] Instead of determining an appeal, the decision can be sent back:

111 Court may refer matter back for reconsideration

(1) Instead of determining an appeal under this Part, the appropriate court may direct the authority or Tribunal whose decision or order is

appealed against to reconsider, either generally or in respect of any specified aspect, the whole or any part of the decision or order.

(2) In giving a direction under subsection (1), the court—

(a) must state its reasons for the direction; and

(b) may give any other directions it thinks just as to the matter referred back for reconsideration.

(3) The person or body whose decision or order is appealed against—

(a) must reconsider the matter; and

(b) in doing so, must—

(i) take the court’s reasons into account; and

(ii) give effect to the court’s directions.

The disciplinary charge

[5] The…

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: [2016] NZHC 2949
Decision Date: 7 December 2016

CaseChat Overview and Summary

In ANG v Professional Conduct Committee, the appellant, a registered medical practitioner, had appealed against the Health Practitioners Disciplinary Tribunal's decision to decline an application for permanent name suppression. The Professional Conduct Committee (PCC) had laid a disciplinary charge before the Tribunal alleging that the appellant had conducted himself in a dishonest and/or unprofessional manner that amounted to professional misconduct. The charge was heard by the Tribunal, which found that the appellant's conduct involved a significant element of deceit and had occurred over a significant period of time. The Tribunal had concluded that while it was close to ordering suspension of the appellant for a period, it had decided to accept that this was not needed in the circumstances. Instead, the appellant was censured, ordered to pay a fine of $8,000 and to pay $18,000 as a contribution to the costs of the PCC and the Tribunal. Conditions were also placed on his practice for a period of three years. The Tribunal had declined to order permanent suppression of the appellant's name and identifying details. The appellant had appealed against the Tribunal's decision. The appeal was to the High Court under s 106 of the Health Practitioners Competence Assurance Act 2003. The Court was satisfied that there was an error in the analysis of the Tribunal; being a significant overweighting of the public interest to know just who it was being disciplined, even in a case where the professional was not prevented from continuing to practise, and was assessed at being of no risk to the public. The Tribunal had fallen into error by importing into the application of s 95 of the Act, criteria deployed in a different statute, the Sentencing Act, applying to the criminal jurisdiction. The Court concluded that there was sufficient error to justify intervention by the Court under the May v May principle. The Court considered three considerations, which taken together, made it desirable to prohibit the publication of the appellant's name. These considerations were: (a) that the Tribunal had reached the conclusion that it would not order suspension of the appellant from practice; (b) that the evidence of the two experts, Professor Sellman and another practitioner, highlighted risks of the personal welfare of the appellant if his name was published; and (c) that consideration needed to be given to the effect of publication of the appellant's name upon his wife and immediate family in a context where they were already grieving as a result of an unrelated family tragedy. The Court made orders quashing the Tribunal's decision where it declined to order permanent suppression of the appellant's name and identity and details that identify him, including where he lives and where he works. The Court also ordered that the respondent pay the appellant's costs on a standard 2B basis.

Orders