C v Medical Council of New Zealand - [2013] NZHC 825

No judgment structure available for this case.

ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE PLAINTIFF, THE COMPLAINANT AND MS A.

ORDER THAT COURT FILE NOT TO BE SEARCHED WITHOUT THE APPROVAL OF A JUDGE.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1977 [2013] NZHC 825

IN THE MATTER OF an application for judicial review pursuant to the Judicature Amendment Act 1972

BETWEEN C Plaintiff

ANDTHE MEDICAL COUNCIL OF NEW ZEALAND
Defendant

Hearing: 14 March 2013

Counsel: A H Waalkens QC for plaintiff
N J Russell for defendant

Judgment: 19 April 2013

RESERVED JUDGMENT OF DOBSON J

C v THE MEDICAL COUNCIL OF NEW ZEALAND HC WN CIV-2012-485-1977 [19 April 2013]

Contents

Factual background .......................................................................................................................... [4] Guidelines on doctor-patient relationships ................................................................................... [23] The PCC and Council decisions ..................................................................................................... [29] Grounds for review ......................................................................................................................... [37] Relative intensity of review............................................................................................................. [41] Lack of challenge to PCC recommendations ................................................................................ [52] Was the Council’s decision unreasonable? .................................................................................... [58] A doctor-patient relationship?...................................................................................................... [62]
Complaint assumed inappropriate relationship existed during period of professional
attendances ................................................................................................................................... [74] Reliance on inapplicable parts of the guidelines.......................................................................... [95] Failure to consider submissions in support of Ms C/inadequacy of reasons ............................ [102] Pre-determination ..........................................................................................................................[110] Council obliged to hear Ms C/afford opportunity to comment on potential outcome?............[112] Orders allegedly exceeded Council’s jurisdiction ....................................................................... [126] Outcome ......................................................................................................................................... [137] Costs ............................................................................................................................................... [140] Non-publication orders ................................................................................................................. [141]

[1] These proceedings comprise an application by Ms C to judicially review the exercise of statutory powers by the defendant (the Council) under the Health Practitioners Competence Assurance Act 2003 (the Act).

[2] In circumstances described below, in June 2012 the Council adopted a recommendation made by a Professional Conduct Committee (PCC) to the effect that Ms C’s actions had represented a breach of trust in a doctor-patient relationship. The Council required Ms C to meet with a senior colleague for counselling that would review her insight into the circumstances which gave rise to the complaint against her. Ms C was also required to meet with a mentor on a monthly basis for
12 months in order to discuss the doctor-patient boundary issues identified by the

PCC. Those involved in the required steps were to report back to the Council.

[3] That outcome is less serious in its adverse impact on Ms C than other determinations the Council has jurisdiction to make, and in respect of which rights of appeal arise under the Act.1 It is nonetheless acknowledged that the Council’s decision in respect of Ms C constituted the exercise of a statutory power and is
therefore vulnerable to judicial review.

1 Health Practitioners Competence Assurance Act 2003, s 106(1).

Factual background

[4] In December 2007, the complainant was receiving treatment for cancer in the oncology department of the hospital at which Ms C is a specialist. Ms C was not one of the doctors assigned to look after the complainant, and the medical treatment required for her cancerous condition was outside the scope of Ms C’s specialisation.
Notwithstanding that, Ms C interacted with the complainant on three occasions:

Once providing a prescription to the nurses looking after the complainant to

enable morphine to be administered to her.

On one occasion attempting to calm the complainant following a scan procedure. The complainant contended that there was discussion of the level of concern about a lesion on her liver that had been identified in the scan, but
notes of the attendance suggested that detail was not raised.

Taking a blood sample from the complainant when she came back to the hospital after her discharge and her treatment team was not available for that
procedure.

[5] As at December 2007, the complainant had for some period of time been living in a civil union partnership with Ms A. Ms C was acquainted with both the complainant and Ms A before the professional attendances in December 2007. In particular, she had known Ms A for a substantial number of years.

[6] Shortly after the complainant’s period in hospital in December 2007, her civil union partnership with Ms A ended, and in February 2008 Ms A entered into a de facto relationship with Ms C. That relationship is on-going.

[7] In February 2008, the complainant wrote to the relevant District Health Board expressing concerns at the prospect of Ms C having access to her medical records. Later in February 2008, the Chief Medical Officer of that District Health Board wrote to the complainant, providing an unconditional assurance on behalf of Ms C that she would not access the complainant’s clinical records.

[8] In March 2010, the complainant raised unresolved matters from her earlier complaint with the appropriate District Health Board. On 27 March 2010, the Chief Medical Officer of that Health Board replied to the complainant in the following terms:

[Ms C] was not part of your treatment team and did not advise you on ongoing treatment, nor did she attend or undertake any discussions of your treatment or condition with any of the Oncology team.

We have no evidence of a professional relationship between [Ms C] and yourself … and you have not provided me with any evidence of a professional relationship that has been breached.

[9] The complainant copied her March 2010 correspondence about her complaint in relation to Ms C’s conduct to the Health and Disability Commissioner. After a number of exchanges, in July 2011 the Commissioner referred that complaint to the Council for consideration.

[10] In accordance with the procedure under s 65(2) of the Act, the Council decided to refer the complaint to a PCC. That decision was made in October 2011, and the PCC appointed for this investigation commenced its inquiry in January 2012.

[11] Ms C initially kept open the prospect of meeting with the PCC, but wished first to understand the full extent of matters conveyed by the complainant to the PCC.

[12] On 22 March 2012, having considered all the materials provided to her, Ms C advised the PCC that she did not consider it would be necessary to take up the PCC’s offer of meeting with it. Instead, in a four page letter dated 22 March 2012, Ms C set out the reasons why she considered the complaint did not require a determination that any further action be taken against her.

[13] Ms C described the extent of her professional contact with the complainant, and the gap in time that existed between those interventions and the commencement of her intimate relationship with Ms A. The last contact with the complainant had occurred no later than the last week of December 2007. She advised that her intimate relationship with Ms A commenced in February 2008, although

acknowledging that Ms A had stayed at her home from mid January 2008 in circumstances where they were purely friends, as they had been for many years. The letter also addressed three respects in which the Council’s guidelines on sexual boundaries in the doctor-patient relationship might arguably have applied, and provided reasons as to why she considered that none of those aspects of the guidelines could possibly apply.

[14] By letter dated 11 April 2012, the PCC advised Ms C of the recommendation it would be making to the Council that she be counselled. That letter conveyed the PCC’s belief that Ms C had breached the Council’s guidelines on “providing care to yourself and those close to you”, and also breached the “underlying principle of trust in the doctor-patient relationship, as expressed in the sexual boundary policy”. The PCC recorded its view that Ms C appeared to lack insight into the harm she had caused the complainant.

[15] The Council then invited Ms C to make a written response to the PCC’s recommendation, ahead of its consideration of that recommendation at a Council meeting on 12 and 13 June 2012.

[16] On behalf of Ms C, Mr Waalkens QC wrote to the Council on 5 June 2012. That letter recorded a request that had previously been made on Ms C’s behalf that she and Mr Waalkens have the opportunity to appear before the Council, but that such opportunity had not been afforded to her. Mr Waalkens’ letter reserved Ms C’s position in that regard.

[17] In addition to setting out reasons for refuting the findings and recommendations of the PCC, Mr Waalkens attached two items of further correspondence.

[18] First, an opinion from Dr A B Marks, a consultant psychiatrist who had interviewed Ms C in relation to the issues raised by the PCC’s findings and recommendation. In her affidavit in support of the present proceedings, Ms C
described Dr Marks in the following terms:2

2 Affidavit of the plaintiff sworn 10 September 2012 at [22].

I understand Dr Marks is a psychiatrist who is used by the Medical Council for psychiatric and other assessments which at times it may seek in respect to medical practitioners. That is to say, Dr Marks is a highly respected psychiatrist whose status I understand was accepted by the Council in that regard.

[19] Having reviewed the circumstances in light of the PCC’s letter, Dr Marks expressed the opinion that there was not an established doctor-patient relationship between Ms C and the complainant. He expressed surprise at the PCC’s conclusion that Ms C showed a lack of insight, and expressed no doubt that Ms C had both appreciation and insight into the upset that had been caused to the complainant as a consequence of Ms C forming a relationship with Ms A. Dr Marks expressed the opinion that Ms C did not need the counselling proposed by the PCC and rather that Ms C “is in a position to teach rather than learn further understanding and insight into the Medical Council guidelines”.

[20] The second annexure to Mr Waalkens’ letter was from the clinical leader of the branch of medicine to which Ms C was attached at the relevant hospital. That letter also expressed disagreement with the PCC’s conclusions and confirmed that it was not possible for Ms C to have been the complainant’s doctor. The letter firmly defended Ms C’s limited professional interactions with the complainant, suggesting it would have been unprofessional for her to have done otherwise, and rejected the notion that there was any need for counselling. The letter concluded with the clinical leader’s observation that the PCC “has quite simply erred”.

[21] Before Mr Waalkens’ letter was received, the Professional Standards

Co-ordinator for the Council circulated to Council members papers for the 12 and

13 June 2012 Council meeting. In relation to Ms C, a three page summary of the matter was provided, identifying that Ms C’s position was raised for the Council to consider the report of the PCC. The Council paper provided two options for consideration by Council members. The paper noted that at the time of its writing, no submission had been received from Ms C. No further papers were discovered by the Council, providing anything in the way of an analysis of the arguments raised by Mr Waalkens’ 5 June 2012 letter on her behalf, and the attachments to it.

[22] The minutes of the Council meeting, as far as they relate to consideration of Ms C’s position, record the adoption of one of the recommendations in the briefing paper to Council members, and the minutes are expressed substantially in the terms of the briefing paper that had been provided.

Guidelines on doctor-patient relationships

[23] The Council conveys its expectations as to appropriate conduct in doctor-patient relationships in a series of guidelines. It publishes, and periodically updates, a publication entitled “Sexual Boundaries in the Doctor-Patient Relationship” (the guidelines). The version in evidence, which was taken for the purposes of argument to have been current at the time of the relevant proceedings (or if it was not, not to be materially different from the version that was) includes an acknowledgement at the outset that:

The Council’s objective in this publication is to assist you by detailing and explaining your professional and ethical responsibilities to maintain sexual boundaries with patients.

[24] The introductory statement in the guidelines was:3

The Council has a zero-tolerance position on doctors who breach sexual boundaries with a current patient. In the Council’s view it is also wrong for a doctor to enter into a relationship with a former patient or a close relative of a patient if this breaches the trust the patient placed in the doctor.

[25] Mr Waalkens drew attention to subsequent comments in the guidelines that suggest there are permitted circumstances in which a sexual relationship between a doctor and a current patient might be tolerated. For instance:4

Whether it was you or the patient who first threatened sexual boundaries in the doctor/patient relationship, as the professional you need to take action. You may still feel able to continue being the patient’s doctor. However, if you believe you cannot remain objective and professional, it is important that you find alternative care for the patient.

[26] A separate section of the guidelines cautions against sexual relationships with former patients. That part refers to research which shows that a former patient may

3 Medical Council of New Zealand Sexual Boundaries in the Doctor-Patient Relationship
(reprinted October 2009) at 2.
4 At [41].

still be harmed by having a relationship with his or her former doctor, even if he or she has been transferred to another doctor. The section acknowledges that it is difficult to have clear rules on when it is acceptable for a doctor to have a relationship with a former patient.

[27] A further section of the guidelines raises cautions about sexual relationships with family members of patients. It begins with pointing out the importance of a doctor being aware of the influence that the doctor will have as the doctor of a family member, and that it may be similar to the influence you develop with a patient. It continues:5

You should think carefully before developing a relationship with a family member of a patient. If you do develop a relationship, ensure that there is no harm to the patient.

A sexual relationship between you and a family member of a patient will always be regarded as unethical if it can be shown that you have used any power imbalance, knowledge or influence obtained as the patient’s doctor.

[28] The Council also published a separate document in June 2007, “Statement on providing care to yourself and those close to you” (the June 2007 statement). It stated:

It is generally unwise for medical practitioners to treat people with whom they have a personal relationship rather than a professional relationship. Providing care to yourself or those close to you is neither prudent nor practical due to the lack of objectivity and discontinuity of care.

The PCC and Council decisions

[29] The PCC decision of 11 April 2012 cited all three of these standards or guidelines as being relevant to its assessment of the complaint against Ms C. It observed:

While the PCC accepts that both [the complainant] and you state that you were not [the complainant’s] doctor, you were still providing (albeit limited) care and using your knowledge and position as a doctor to support [the complainant]. The PCC considers that these statements and the principles underlying them are relevant to this case.

5 At [84], [85].

[30] The PCC’s reasons for the recommendation it made were recorded in the

following terms:

The PCC believes you have been unwise with regard to professional doctor patient boundaries. Your denial of virtually any wrong doing demonstrates a failure to recognise that [the complainant’s] complaint is fundamentally about a breakdown of trust; that your relationship with [Ms A] is tied to [the complainant’s] sense of betrayal and her subsequent loss of trust in the public health system.

Doctors are in a position of trust. When seeking assistance, guidance and treatment, the patient is vulnerable. The PCC is concerned that you appear to have insufficient insight into the impact and influence you had on [the complainant] as a medical practitioner even though you were not [the complainant’s] treating doctor. The support relationship you had with [the complainant] during her treatment for cancer created a relationship of trust and [the complainant] disclosed and discussed private and personal information with you.

You appear to lack insight into the harm you caused [the complainant] when you formed an intimate relationship with [the complainant’s] long term partner while [the complainant] was having chemotherapy treatment.

The PCC believes you have breached the MCNZ guidelines on “providing care to yourself and those close to you” which state that “It is generally unwise for medical practitioners to treat people with whom they have a personal relationship rather than a professional relationship.”

The PCC also consider that your actions were in breach of the underlying principle of trust in the doctor patient relationship, as expressed in the Sexual boundary policy.

The PCC believes you need to be counselled to understand fully where you have breached professional boundaries and the impact of that breach.

[31] In the briefing paper for the Council meeting in relation to Ms C, the Professional Standards Co-ordinator offered the Council two options, the first of which was to adopt the recommendation that had been made by the PCC. The second option was to counsel Ms C by way of a strongly worded educational letter that acknowledged whilst she was not the complainant’s treating doctor, the support relationship created a relationship of trust and that the behaviour constituted a breach of Council guidelines on providing care to yourself and those close to you, and the guidelines on the importance of clear sexual boundaries in the doctor-patient relationship.

[32] The Council decision, from which one Council member abstained and a second voted against, was to adopt the first option.

[33] The Council’s letter dated 28 June 2012 advising Ms C of the outcome included the following:

Council did not accept your continued denial that your actions did not represent a breach of trust in the doctor patient relationship (as expressed in our Sexual boundary policy). Council resolved that you are required to meet with a senior colleague from the RNZCGP, an ethicist or a psychiatrist, in order to discuss and review your insight into:

why this complaint arose

the way you provided support to [the complainant] during her cancer treatment
how you handled the boundary issues that arose because of your friendship with [the complainant] and [Ms A].

The number of meetings you are required to participate in is at the discretion of the person with whom you meet.

Council further resolved that you are required to meet with a mentor, on a monthly basis, for 12 months in order to discuss the doctor/patient boundary issues identified by the PCC.

[34] The letter also advised the Council’s requirement that Ms C and a senior colleague or chosen professional and the mentor provide the Council with a report after completion of the meetings in order to advise the Council of Ms C’s understanding of what is required of her in respecting doctor-patient boundaries. The letter advised that if the reports were not satisfactory, the Council would consider requiring Ms C to “…undergo a further period of mentoring and meeting(s)”.

[35] The reasons for the Council’s decision were expressed as follows:

counselling should assist you to fully understand that [the complainant]
suffered distress and a loss of confidence in receiving health care from
… District Health Board because of your blurring of professional doctor
patient boundaries
a meeting, followed by a report from the senior colleague from RNZCGP, an ethicist or a psychiatrist, and the mentor, will inform Council as to whether you fully understand what is required of you in terms of maintaining clear boundaries with a patient.

[36] The Council’s letter advising of the outcome acknowledged receipt of Mr Waalkens’ letter of 5 June 2012, but did not provide any reasons for rejecting the various arguments that had been raised. Nor did the letter acknowledge the two opinions by the medical professionals, or provide any reasoning as to why the Council rejected the various bases on which Ms C had argued that there was no relevant doctor-patient relationship.

Grounds for review

[37] Ms C’s primary challenge was that the Council’s decision was unreasonable in the sense that no reasonable body in the position of the Council could make the determination that it did. Ms C contended its findings on the existence of a doctor-patient relationship were wrong, and that the determinations that Ms C’s conduct warranted a requirement for counselling and reporting back to the Council were unreasonable. In addition, Ms C pleaded that the Council was obliged to provide reasons for its findings against her, which it did not, or did not adequately, provide.

[38] These criticisms were defended on the basis that the findings were reasonably open to the Council, and that its determination on the consequences of the finding were proportionate and not assailable as unreasonable. The Council denied that it had an obligation to provide any more reasons for its determination than it did.

[39] Ms C also raised a number of alleged deficiencies of process, and disputed that the Council had jurisdiction under the Act to order counselling by others and reporting back to the Council in the present circumstances.

[40] Before dealing with the substance of Mr Waalkens’ criticisms of the Council decision, two contextual arguments need to be addressed.

Relative intensity of review

[41] The first issue is the approach to be adopted by the Court in assessing a claim for judicial review in a context such as the present. Mr Russell criticised

Mr Waalkens’ arguments as requiring the Court to substitute its own view on the merits of the decision made by both PCC and the Council, as if the proceeding was a general appeal. Instead, he urged that the judicial review should be confined to an analysis of the correctness of the decision-making process, rather than the correctness of the decision itself.6 Mr Russell also submitted that review of decisions in respect of professional standards of conduct remained an area which required deference from the Court to the expertise the Council has within its professional boundaries. This would lead to a less intense standard of review. He
cited the observation of Elias J in a High Court appeal from a Medical Council disciplinary decision under the predecessor of the Act:7

The structure of the disciplinary processes set out by the [Medical Practitioners] Act [1968], which rely in large part upon judgement by a practitioner’s peers, emphasises that the best guide to what is acceptable professional conduct is the standards applied by competent, ethical and responsible practitioners.

[42] Mr Russell also invited an analogy with the relative level of respect for processes and outcomes in judicial reviews challenging rating decisions by local authorities.8 He characterised the court as taking a relatively “hands off” approach to decisions on the exercise of rating powers, and argued that the Court ought to be similarly “hands off” with the processes and decisions of the Council.

[43] In settling on the appropriate approach to review of the Council’s decision, obviously my own view on the merits (ie whether I would have arrived at the same decision as the Council) could not be determinative. In assessing whether, in the administrative law sense, the decision reached was unreasonable, it is appropriate to adopt a measure of deference to the decision-makers in what amounted to a quasi- disciplinary context dealing with a potential breach of professional standards. Doctors certainly have a heightened awareness of the context in which doctor-patient relationships are managed, and how doctors are to have regard to the guidelines.
That requires appropriate deference.9 However, it is appropriate to acknowledge that

6      Citing Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 155 (HL).
7      B v Medical Council of New Zealand, noted at [2005] 3 NZLR 810 at 810–811.
8      For example, Waitakere City Council v Lovelock [1997] 2 NZLR 385.
9      For example, Wislang v Medical Council of New Zealand [2002] NZAR 573 (CA) at [40].

the quotation from Elias J cited by Mr Russell was immediately followed by these observations:10

But the inclusion of lay representatives in the disciplinary process and the right of appeal to this Court indicates that usual professional practice, while significant, may not always be determinative: the reasonableness of the standards applied must ultimately be for the Court to determine, taking into account all the circumstances including not only usual practice but also patient interests and community expectations …

[44] That approach seems similarly appropriate in judicial review.

[45] One circumstance arguably favouring a less intensive level of review is that the consequences for Ms C were not as serious as can arise in professional disciplinary contexts and, for example, there was no threat to her continued practice, or publicity of an adverse finding against her. As Mr Russell observed in another context, the Council intended the outcome to be educational rather than punitive.11
As against that, Mr Waalkens argued that the seriousness of the matter should not be

downplayed where a practitioner who has previously enjoyed a good reputation has, on her view, wrongly been found to have breached relevant standards. Further, the requirement to undertake counselling may appear relatively innocuous. However, if Ms C did not, in the subsequent counselling, meet the expectations of those who have made what she considers to be a wrong adverse finding against her, a prospect remains of additional steps being taken that might be further adverse to her interests.

[46] The result is that unreasonableness in the administrative law sense will not be made out unless the decision is not rationally justifiable, allowing a margin for reasonable differences of opinion about the manner in which professional standards should be applied. It is not a matter of substituting my own view, but allowing a margin for deference before being able to find that the determination was not one that the Council could reasonably arrive at.

[47] Mr Waalkens argued as part of his challenge to the Council decision that the outcome lacked proportionality relative to the factual circumstances to which the

10 B v Medical Council of New Zealand [2005] 3 NZLR 810 at 811.
11 Observed in the context of an application for suppression of personal details, dealt with at [141]
to [144] below.

decision related. In resisting any proportionality analysis, Mr Russell took the point that the lack of proportionality was not a pleaded criticism as founding a reviewable error, so ought not to be taken into account.

[48] In the somewhat different context of an appeal, Mr Waalkens cited the approach of the Privy Council (sitting on appeal from the United Kingdom General Medical Council), observing that respect for the judgement of a professional conduct committee would be tempered by the need for the Court to form its own judgement on whether the adverse outcome for a practitioner was more than was warranted in the circumstances, there put in terms of whether a striking off “… was appropriate
and necessary in the public interest or was excessive and disproportionate”.12

[49] As to the absence of a formal pleading that the outcome lacked proportionality, I am not persuaded that, in a context such as the present, administrative law concepts under the heading of unreasonableness yet require the additional specificity that would be involved if claimants for judicial review had to plead lack of proportionality as a discrete ground for review.

[50] Academic debate continues as to whether proportionality is a substitute for Wednesbury unreasonableness,13 or is an additional tool available to the Court to measure the lawfulness of actions taken in exercise of statutory powers.14

[51] Certainly, where review by the court of the outcomes of professional disciplinary proceedings leads to findings that the outcome was excessive and out of proportion to the conduct, then such decisions are vulnerable to being quashed.15
Here, the Council has not been prejudiced in responding to the challenge that its decision was unreasonable in the administrative law sense, by Mr Waalkens inviting
a parallel analysis that the decision lacks proportionality.

12     Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915 at [34].
13     Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
14     For example, Paul Walker, Judge of the High Court of England and Wales “Rights, Wrongs and Proportionality” (Borrin Fellow Lecture, Victoria University, 25 March 2013). See also Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [30–[35]; Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 407.
15     For example, Institute of Chartered Accountants of New Zealand v Bevan [2003] 1 NZLR 154 (CA) at [53]–[55].

Lack of challenge to PCC recommendations

[52] A second issue raised by Mr Russell was the absence of any challenge to the decision of the PCC. As he pointed out, the PCC has its own statutory structure and, although in matters of detail can set its own procedure, its processes are, at least in general terms, prescribed by the Act. It follows that the process leading up to, and the issuing of, its recommendation to the Council could have been the subject of review. Mr Russell characterised some parts of Mr Waalkens’ argument as seeking to visit against the Council alleged substantive errors made, if at all, by the PCC.

[53] Mr Russell argued that the absence of a claim against the PCC had additional relevance because of the relatively confined options available to the Council under the Act. Section 80 of the Act requires a PCC, once it has completed an investigation, to either make one or more of specified ranges of recommendations or determinations. Where a PCC decided to make one of the defined recommendations, then under s 81(3) of the Act, the Council must promptly consider that recommendation. Mr Russell argued that, in the absence of statutory alternatives for the Council, that obligation required it to either accept, or reject, a recommendation made to it by a PCC. It would follow that the constraint on the Council meant that it effectively had to adopt the reasoning on which a PCC’s recommendation relied, or reject it, so that a challenge to a Council decision adopting the recommendation was, in reality, a challenge to the discrete statutory process undertaken by the PCC that had preceded the Council’s decision.

[54] Mr Waalkens denied that there was any need for Ms C to join the PCC. He argued that there was no need to commence a discrete judicial review in relation to the PCC’s recommendation before that had been considered by the Council, when Ms C had reasonable grounds for believing that she could dissuade the Council from adopting the recommendation made by the PCC, and she was keen not to expand the nature of the dispute any more than was necessary.

[55] I do not accept that the absence of explicit alternatives for the Council in s 81(3) of the Act necessarily limits the nature of the decision-making power that the Council exercises when considering a PCC recommendation. Subject to complying

with the obligations of natural justice in giving warning to the persons adversely affected of the prospect of different outcomes, and affording an adequate opportunity for those persons to be heard in relation to the range of potential outcomes, s 81(3) does not require the Council’s powers to be read down so that theirs is simply a binary function requiring acceptance or rejection of the recommendation being considered. That is borne out in this case where the Council’s directions went further than what was recommended by the PCC.

[56] It cannot follow that because the PCC has not been sued, Ms C cannot challenge the components of the Council’s decision that amount to an adoption of the PCC’s reasoning. Certainly, any criticisms of adequacy of process by the PCC could not be attributed to the Council, but the Council’s decision cannot be rendered immune from a challenge on the ground of unreasonableness merely because the decision adopted a finding of another statutory body. From Ms C’s perspective, when the PCC had made its recommendation, the relevance of alleged administrative law errors was contingent on what the Council subsequently decided. It was the subsequent exercise of a statutory power by the Council in adopting the PCC’s recommendation that Ms C treats as having the relevant adverse impact on her interests, and against which she has pursued her challenge.

[57] There would be unwarranted disruption to disciplinary processes provided for under the Act if practitioners had necessarily to challenge PCC determinations or recommendations, prior to knowing what the ultimate outcome was to be as determined by the Council. That does not mean that PCC decisions are immune from challenge, and in other circumstances that may be appropriate. However, in the present context, once the Council had made a decision perceived to be adverse to a practitioner, it was that exercise of a statutory power, and not any antecedent decision, which gave rise to the adverse consequences.

Was the Council’s decision unreasonable?

[58] Although Mr Waalkens mounted his challenge to the reasonableness of the Council decision on its own arguments, assessment of it is inevitably linked to additional criticisms that the Council failed to provide adequate reasons, and that it

failed to consider relevant matters raised on behalf of Ms C for rejecting the PCC

recommendation.

[59] The Council’s decision is relatively opaque but the essence of it must be the finding (although expressed in double negative terms) that Ms C’s conduct represented a breach of trust in a doctor-patient relationship,16 as expressed in the Council’s sexual boundary guidelines. The finding is consistent with the briefing paper prepared for the Council, but there are no reasons given for it in either document.

[60] The PCC had distinguished the guidelines on sexual behaviours in the doctor-patient relationship from the June 2007 statement on behalf of the Council on providing care “to yourself and those close to you”, but the only source of relevant obligations on the doctor referred to in the Council’s letter is the “sexual boundary policy”. Despite that difference, to the extent that the Council has adopted the recommendation made by the PCC, at least one option is to treat the Council as having agreed with the PCC’s reasons for finding a breach of both guidelines.

[61] For the purposes of analysis, I have assumed that the broader range of potential obligations identified by the PCC was also the range of obligations considered by the Council, notwithstanding that the June 2007 statement was not explicitly referred to by the Council and the decision does not explicitly address that topic. To assess the reasonableness of the Council’s decision on a narrower basis would ignore the prospect that its reasoning did adopt the broader analysis undertaken by the PCC, in circumstances where the Council may have treated its adoption of the PCC’s reasoning as implicit.

A doctor-patient relationship?

[62] Mr Waalkens argued that the primary premise on which the findings against Ms C rested was wrong, in that the three professional interactions between the complainant and Ms C could not possibly have constituted theirs a “doctor/patient relationship”. Because the standards by which Ms C was being judged only applied

to doctor-patient relationships, whether one existed was a primary factual issue that had to be determined.

[63] Whether such a relationship existed was a question of fact and degree. I was not referred to any definition of the criteria for a doctor-patient relationship. The touchstone is presumably the existence of sufficient professional interactions between a doctor and a patient of a type and in a context in which it becomes objectively reasonable for the patient to repose trust and confidence in the doctor in relation to a medical condition for which the patient has sought treatment from that doctor.

[64] Ms C denied the existence of a doctor-patient relationship, having disclosed the extent and circumstances of her interactions with the complainant. Her characterisation was supported by the supervisor of that part of the hospital in which she practised her specialty. Such support had been consistent from the response to the initial complaint in 2008, through to a comprehensive analysis and rejection of the proposition that there was a doctor-patient relationship in the letter submitted to the Council in support of submissions on behalf of Ms C.

[65] In a finding that a breach of the guidelines had occurred, it is necessarily implicit that the Council also found that a doctor-patient relationship existed between Ms C and the complainant. The Council did not provide any reasons for that implicit finding. The PCC’s analysis had included the following:17

While the PCC accepts that both [the complainant] and you state that you were not [the complainant’s] doctor, you were still providing (albeit limited) care and using your knowledge and position as a doctor to support [the complainant]. The PCC considers that [extracts from the guidelines on sexual boundaries, on relationships with a former patient or close relative of a patient, and the statement on providing care to yourself and those close to you that had been referred to] and the principles underlying them are relevant to this case.

[66] A finding of a breach of the June 2007 statement in relation to “providing care to yourself and those close to you” is not necessarily contingent on a finding that a doctor-patient relationship existed. That statement appears to recognise that a

doctor may be in a situation where he or she must “provide care” or “treat people” in circumstances that may fall short of a formal doctor-patient relationship. For instance, the statement recognises that a situation similar to the present could arise without the necessary doctor-patient relationship forming:18

In an emergency, doctors may provide treatment to themselves and those close to them until another doctor is available.

[67] However, the Council did not make that distinction, and did not explain its findings against the contingency that no doctor-patient relationship existed. The Council’s rejection of Ms C’s explanation for her conduct rests squarely on the finding of a breach of trust in the doctor-patient relationship, and the steps required of Ms C focus upon educational issues involving doctor-patient relationships.

[68] Mr Russell’s arguments did not seek to justify the implicit finding that the conduct complained of occurred in the context of a doctor-patient relationship. It is reasonable for such guidelines in relation to a doctor’s conduct to be given the widest possible application to achieve the purpose of best protecting the public and promoting good standards. However, the credibility of such guidelines requires the scope of their application to be subject to relevant and objective definitions.

[69] The absence of any reference to consideration of this point in any one or more of the paper prepared for the Council, the minutes of the Council’s deliberations, or the letter conveying the Council’s decision, is a cause for concern. It leads to the prospect that the Council members did not turn their minds to this fundamental point at all. Alternatively, they did, and were comfortable adopting the analysis reflected in the PCC’s recommendation. Another possible alternative is that the Council may have considered that the constraints required by the guidelines should apply to any professional contact between a doctor and a person seeking any form of medical advice or intervention for which a doctor was required.

[70] Of this range of alternatives, I consider first the prospect that the Council’s decision depends on a finding that there was a requisite doctor-patient relationship. In that event, Mr Waalkens’ argument was that the Council’s determination that such

a relationship existed was not open to it on the evidence. Ms C provided a reasoned rejection of the prospect that her limited interventions were sufficient to create such a relationship. Her view has been consistently supported by those in charge of the part of the hospital at which she practices her specialty. The complainant does not assert that there was a doctor-patient relationship. The complainant was a patient receiving on-going and close supervision from other doctors. In those circumstances, a finding of a doctor-patient relationship with Ms C could only be justified by applying a definition that was reasonably open to the Council and that was very different from the definitions adopted by Ms C and those supervising the part of the hospital in which she worked. Mr Russell did not suggest that that was the case.

[71] The next alternative is that the Council considered, notwithstanding the absence of a doctor-patient relationship, that Ms C ought to have treated her interactions as governed by the guidelines, even although there was no such professional relationship. That prospect gives rise to further concerns. First, in the immediate case, if Ms C was to be judged by an analogy with guidelines that did not directly apply to the interactions she had with the complainant, then Ms C ought to have been afforded an opportunity to challenge the application of such standards in wider circumstances than when a doctor-patient relationship existed. Secondly, such an approach would most likely be of general interest to practitioners because it introduces the prospect of creating a precedent for disciplinary action in wider circumstances than practitioners are given notice of by the content of the guidelines.

[72] Accordingly, if this second alternative was the approach adopted by the Council, then the manner in which it was dealt with and lack of reasoned justification for adopting such a stance would render the decision one that a reasonable Council could not have arrived at.

[73] The remaining alternative is that the Council did not turn its mind to the issue of whether the requisite doctor-patient relationship did exist, notwithstanding the arguments presented that such a relationship did not exist. A decision made without addressing that fundamental issue would similarly be unreasonable.

Complaint assumed inappropriate relationship existed during period of professional attendances

[74] The PCC interviewed the complainant at some length in February 2012.19

She had suffered the trauma of a split in her civil union partnership at a time she was dealing with the physical and emotional trauma of chemotherapy. The interview occurred more than four years after the events. The complainant indicated that her complaint had originally been about the apparent inability of the public health system to provide categorical assurances that Ms C had not gained access to the complainant’s medical files, and that she would not be able to do so in the future.

[75] Her broader complaint about Ms C’s relationship with the complainant’s former partner (Ms A) was a matter that the complainant had had different views about over the period between the events occurring and her being interviewed. After Ms C and Ms A had formed an intimate relationship, the complainant became worried about the motives for Ms C’s involvement with her medical treatment, and formed the view that Ms C’s involvement in the relationship the complainant had
with Ms A was calculated.20 The complainant recalled being distressed when the

split occurred and her concern was that Ms C had wanted her out of the way more

than she was interested in the complainant’s care and support.21

[76] However, the complainant acknowledged that logic would tell her such unprofessional motives had not affected Ms C’s actions but that was not how the complainant felt at the time. Shortly before being interviewed, the complainant had had a relapse in her cancerous condition and that further onset had re-ignited her previous concerns. She acknowledged that had she been interviewed six months previously, she would have been okay about the matter, but in the interview explained her concerns as they had originally arisen in the period immediately after
the break-up of her own relationship.22 In answer to a leading question, the
complainant agreed with one of the PCC members that Ms C had fostered a relationship with the complainant in relation to her cancer treatment that involved an

19     The transcript of the interview runs to 24 pages.
20     Transcript of the interview between the PCC and the complainant at 3/6 and 21/21.
21     At 3/19.

imbalance of power. At the time, the complainant took comfort from the support that

Ms C offered, because of her privileged position as a doctor.

[77] Fundamental to the complainant’s concerns at an abuse of the trust she placed in Ms C was her rejection of Ms C’s claim that an intimate relationship between Ms C and Ms A did not occur in any form until some time after Ms C’s last intervention in the complainant’s treatment. On the complainant’s reconstruction shortly after the events, she felt justified in characterising Ms C’s motives in involving herself in the complainant’s medical treatment as part of Ms C’s plan to woo Ms A away from the complainant. Understandably, the complainant was influenced by her recollection that when Ms A left her, Ms A said she was going because she was in love with Ms C. In addition, the complainant alluded during her interview with the PCC to a belief or suspicion that Ms C had also acted in this way in the past. She treated Ms C’s denial that any intimate relationship with Ms A had commenced whilst there was any professional interaction as being dishonest.

[78] Ms C did not dispute that Ms A may have left the complainant on the terms cited by the complainant, but Ms C was firm that she remained unaware of the nature of Ms A’s feelings for her (if they existed at the time) until some time in the following month.

[79] The PCC did not make a direct finding about the contested sequence of events in which the relationship between Ms C and Ms A arose. The PCC did criticise Ms C’s conduct on the basis that she had formed an intimate relationship with Ms A whilst the complainant was having chemotherapy treatment. The complainant told the PCC that her chemotherapy treatment continued until
31 December 2007.23

[80] This is another point on which the Council did not record any view. It appears that the Council was not provided with the transcript of the PCC’s interview with the complainant. No reference is made to the transcript in the minutes of the Council’s deliberation or its decision. Also, in an affidavit by the Registrar of the Council describing the process, his list of the materials available to Council members

makes no reference to the transcript.24 Ms C recalled the development of her relationship with Ms A in precise terms, and her account of the extent of medical interventions was apparently corroborated by the records of the complainant’s treatment at the time.

[81] Accordingly, there are two grounds for challenging the finding that there had been a breach of trust. The first ground is that the factual sequence of events on which it was based is contrary to the evidence. A finding of a breach of trust reflects acceptance of the terms of the complaint. However, that involves rejection of Ms C’s description as to the timing of the start of her intimate relationship with Ms A. There could be no finding of a breach of trust if Ms C’s description was accepted, as this would depend on the complainant continuing to repose the same form of trust in Ms C after the termination of their professional relationship, which was not how she advanced her complaint.

[82] If the materials available to the Council were confined to the PCC report and Ms C submissions plus annexures, then there is no direct evidence challenging Ms C’s reconstruction that her intimate relationship with Ms A commenced some time after her last professional intervention with the complainant.

[83] Alternatively, if the Council did indeed have the transcript of the PCC’s interview with the complainant, then that would demonstrate that the complainant’s assertion as to when an intimate relationship between Ms A and Ms C commenced reflected a view she had formed on the basis of suspicions that were at the least contestable, however understandable in the circumstances.

[84] Once the factual sequence of events proposed by the complainant is questioned, there is no basis on which a relationship of trust, as she characterised it, could reasonably have been found to have been breached. Most relevantly to the guidelines, the complainant was entitled to trust that Ms C would not exploit the doctor-patient relationship with her to develop a close friendship with a member of the complainant’s family. The complainant’s concern that the doctor-patient relationship had been abused by Ms C depended on her conviction that Ms C was

abusing the opportunity that an on-going doctor-patient relationship afforded to pursue or foster an intimate relationship with Ms A.

[85] However, if, as Ms C claimed, there was a break in time between the last of her professional dealings with the complainant, and the beginnings of an intimate relationship with Ms A, then there has not been abuse of that trust and the matter is to be looked at in the different context of a relationship being formed with a close relative of a former patient.

[86] The guidelines on sexual relationships with family members of patients25 address the situation where the doctor has an on-going doctor-patient relationship with one person in a family, and develops a relationship with a family member of that patient. The guidelines caution doctors in that situation to “ensure that there is no harm to the patient”.

[87] If the Council’s decision on a breach of trust relied on that provision, it appears to have overlooked the absence of an on-going doctor-patient relationship between the complainant and Ms C. It is difficult to see the Council having justification for a finding of breach of trust in relation to that component of the guidelines, in the absence of the analysis required to determine whether there was in fact a doctor-patient relationship at the time the inappropriate relationship commenced.

[88] The guidelines also address the prospect of relationships between a doctor and a former patient. To the extent the Council had those in mind when attributing a breach of trust to Ms C, it would be in error because there was no sexual relationship between the complainant and Ms C, and Ms A had never been a patient of Ms C.

[89] In addition, the complainant was entitled to trust Ms C not to exploit in any way the knowledge she gained of the complainant’s medical condition or emotional state, for the purposes of advancing a relationship with Ms A as a close family member of the complainant. Whilst a component of the complainant’s fears was that

this may have occurred, the hospital investigated and was categorical that it had not occurred.

[90] More generally, aspects of the complainant’s reconstruction of events suggest an expectation that she could trust Ms C to not entertain the prospect of any intimate relationship with Ms A into the foreseeable future, merely because of Ms C’s incidental professional attendances on the complainant.

[91] If that is the form of trust that the Council is referring to as having been breached, then I am not satisfied that the guidelines provide any reasonable basis for such a broadly expressed expectation.

[92] The second aspect of Ms C’s challenge to the finding that a breach of trust occurred is that there was a lack of procedural fairness because Ms C was not given fair warning of the case against her. It would obviously be material to Ms C’s justification for her conduct, if the Council was considering rejecting her analysis of the chronological sequence of events, and was instead going to assess the allegation of a breach of trust on the basis that an intimate relationship between Ms C and Ms A commenced whilst Ms C was still providing professional attendances to the complainant.

[93] I am not satisfied that Ms C was put on notice that the Council might adopt that approach. Ms C addressed the sequence as she recalled it and she had no reason to be concerned that the Council would reject her reconstruction of the timing. That is an inadequacy of process that could have been cured if the Council had afforded her the opportunity of appearing before the Council and being questioned about it.

[94] In summary on this ground of challenge, the basic premise relied on in the complaint against Ms C was that an intimate relationship formed between Ms C and Ms A during the period of Ms C’s attendances on the complainant. That appears to have been accepted by the Council without the necessary evidential support. The finding that there had been a breach of trust, contingent on that sequence of events, was not reasonably open to the Council. Additionally, making that finding without

the Council warning Ms C that it might adopt that view of the contested sequence of events was a procedural error.

Reliance on inapplicable parts of the guidelines

[95] Mr Waalkens also criticised the reasoning implicit in the Council’s decision for “cherry-picking” inapplicable parts of different components of the guidelines. Whilst some elements of the relationships addressed in parts of the guidelines could superficially apply to the circumstances of any doctor-patient relationship (if one existed at all), on an objective analysis of all the circumstances those components of the guidelines did not apply.

[96] For instance, the first component of the guidelines addresses the prohibition on sexual relationships between a doctor and a patient. Those provisions could not be relevant because there was no sexual relationship between Ms C and the complainant. The rationale for that guideline is reflected in the observation about the need to respect a patient’s trust in his or her doctor because of the risk that a patient involved in a sexual relationship with a doctor might subsequently complain that the imbalance of power between the two was exploited by the doctor in engaging in the sexual relationship.

[97] Next, the guidelines address constraints on a doctor undertaking a sexual relationship with a former patient. Residual elements of a power imbalance derived from the trust a former patient placed in the doctor during the period of the relationship are likely to survive the termination of the professional relationship. Hence, the importance of trust in the relationship is highly relevant in that context as well. Again, however, concerns of that particular type could not be relevant here where there was no sexual relationship between Ms C and the complainant after the termination of any doctor-patient relationship between them.

[98] A further possible alternative is that the Council perceived the conduct to have breached the guidelines on sexual relationships with family members of

patients.26 Ms C did not recognise that provision as applying, because she did not treat the complainant as a patient. Assuming for the present analysis that she either should have, or should otherwise have recognised that those constraints were relevant even although she and the complainant were not in a doctor-patient relationship, then the rationale for taking care in developing such relationships is because it would be unethical to use any power imbalance, knowledge or influence obtained as the patient’s doctor. Unless Ms C’s evidence on the sequence of events was rejected, there could be no need for caution in this situation arising out of any power imbalance or influence that Ms C gained in her professional interactions with the complainant. Ms C also emphatically denied that any of the interactions gave her knowledge of the complainant’s situation that could be exploited in the development of her intimate relationship with Ms A.

[99] The terms of the Council decision suggest that they did not have regard to the separate guidelines on doctors treating themselves or persons close to them. If that inference is correct, then it would mean that the Council finding of breach by Ms C depends on references to breach of trust that are expressed as features of guidelines that did not apply (ie those addressing sexual relationships between a doctor and an existing or former patient or with a family member of a patient).

[100] The additional component that the Council may have considered is the separate constraint on doctors treating themselves or those close to them. This would apply here on the basis that Ms C had an existing personal relationship with the complainant at the time of her professional attendances. If the Council’s decision is to be taken as adopting the reasoning of the PCC in this respect, then the reasonableness of the Council’s decision is to be assessed in light of the rationale for constraints on doctors treating themselves or persons close to them. Understandably, that part of the guidelines does not place the same emphasis on the need to appreciate the trust reposed by a patient. Rather, it focuses on the risk of a lack of objectivity on the doctor’s part in treating patients where professional assessments are likely to be compromised by the strength of inter-personal relationships. It is difficult to see how the Council could reasonably attribute a material risk of such a
failing by Ms C in the present case. The existing relationship between Ms C and the

26 As quoted at [27] above.

complainant was not such that Ms C’s objectivity would have been compromised. Moreover, the treatment that she provided was routine, being incidental to far more thorough and serious treatment by others, and did not require the same objectivity and impartiality that is necessary, for example, in recommendations on treatment options.

[101] I have allowed a margin in appreciation of Council members’ profession- specific expertise in evaluating the standards that could be expected of a colleague. I have also made allowance for the context in which this matter would have come before the Council as one among many items in a two day meeting, involving less serious issues than many others would have, so that a relatively less thorough assessment might seem justified. Despite such allowances, I am satisfied that the cumulative impact of the deficiencies, on whichever of the alternative bases the Council’s reasoning depended, renders the decision one that a reasonable Council, properly directed on the law, could not have come to.

Failure to consider submissions in support of Ms C/inadequacy of reasons

[102] The letter conveying the Council’s decision acknowledged Mr Waalkens’ letter with enclosures “… for consideration at the meeting”. Thereafter, the letter did not address any of the arguments, or deal with the matters raised in support of Ms C’s position in those enclosures. That omission led Mr Waalkens to submit that the Council was deficient in not considering those matters.

[103] In response to that criticism, the affidavit from the Registrar of the Council deposed that Mr Waalkens’ submissions and the enclosures were provided via an electronic source that could be accessed by Council members, and to the best of his recollection there was a robust discussion amongst Council members about the PCC’s report, its recommendations and Ms C’s response. The Registrar also recalled that Council members actively considered whether the options presented in the Council’s staff paper for their consideration were appropriate.

[104] In administrative law challenges to the adequacy of analysis by statutory decision-makers, whether all relevant matters were taken into account can readily

merge into sufficiency of the reasons given for the decision. The evaluation will always be context-specific, and here there are tenable grounds for concern raised on behalf of Ms C, whether it be under one or other or both of these headings.

[105] It is unsatisfactory for these concerns on Ms C’s part to be met by an assurance in general terms offered by a staff member who supported the Council members. The two annexures to Mr Waalkens’ submissions provided at least credibly arguable grounds for rejecting the PCC’s recommendation. It seems unlikely that the Council could reasonably have dismissed the credibility of the author of either document without debate and attributing reasons for doing so. On an issue of substantial importance to the person affected, the absence of any acknowledgement of the matters raised in those documents, and a decision devoid of any reasoning countering the matters expressed in them, provides fertile ground for concern that the decision-making process was deficient.

[106] The only articulation on the finding of a breach of standards was that the Council did not accept Ms C’s continued denial that her actions did not represent a breach. Mr Russell’s written submissions contended that the reasons were adequate, but he did not draw a distinction between a primary finding of this type, and the reasons for it. In expanding on those submissions, Mr Russell submitted that for matters of this relatively low level of seriousness, any requirement for exhaustive reasons would be to require the Council to go too far. He suggested less was required in relation to such decisions where there was no right of appeal, contrasting this with the cases in which appeal rights do exist because the decisions have more serious adverse consequences for the practitioner concerned.

[107] With respect, that point is not persuasive. Depending on the circumstances, a finding of the type here may still be reasonably perceived by a practitioner as having material adverse consequences, and a process with the formality of the structure provided under the Act does lead to a reasonable expectation that reasons for the outcome will be provided in sufficient detail to enable persons affected by the decision to understand the grounds on which it has been made.

[108] Mr Waalkens cited as an appropriate summary of the approach to the requirement for reasons, the commentary in McGechan on Procedure.27 The authorities cited in that summary include the observation from the English Court of Appeal, in which it was put that a decision-maker should ask:28

Is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost?

[109] The analysis above on whether Ms C can make out administrative law unreasonableness involves considering a number of alternative propositions for the bases on which the decision adverse to Ms C may have been made by the Council. The requirement to do so demonstrates that in this case the Council’s reasons were inadequate to enable Ms C to understand the basis of the decision adverse to her. Standing back and viewing the complaints overall, I am persuaded that the reasons were inadequate for the circumstances of this case.

Pre-determination

[110] The statement of claim raised the spectre of pre-determination, on the basis of the similarity between the staff briefing paper circulated to Council members for consideration before the meeting at which it considered the PCC’s recommendation, the terms of the minutes produced for the meeting, and finally the terms of the Council’s letter conveying its decision that adopted one of the alternatives from the recommendations made.

[111] However, Mr Waalkens did not advance argument in support of this criticism. The limited reasons for the decision the Council had made may have lent some support to it, but I infer that Mr Waalkens responsibly acknowledged that he could not maintain pre-determination as a criticism of the decision-making process in light
of Mr Dunbar’s affidavit that there had been robust discussion and debate of options.

27 R A McGechan and others McGechan on Procedure (looseleaf ed, Brookers) at 4-24–4-25. See also Chief Executive of the Department of Labour v Taito [2006] NZAR 420 (CA) at [24]; Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 at [108].
28 Phipps v General Medical Council [2006] EWCA Civ 397 at [85].

Council obliged to hear Ms C/afford opportunity to comment on potential outcome?

[112] Mr Waalkens argued that, in the circumstances of this case where the practitioner had explicitly requested to be heard by the Council when it considered the PCC recommendation, it was obliged to do so and has breached the rules of natural justice by its refusal to do so. Mr Waalkens argued that the requirement that Ms C be given an opportunity to be heard was heightened because the Council did not have the benefit of any commentary on the submissions made on behalf of Ms C, in contrast to the papers prepared for them that reviewed matters raised by the PCC recommendation.

[113] Mr Waalkens identified specific contexts in which the Act expressly provides an opportunity for a practitioner to both make written submissions and be heard on
the matter. Those arise where the governing authority (in this case the Council) is:29

proposing to depart from an indicated scope of practice for a practitioner;

proposing to change the authorised scope of practice for a practitioner, reviewing competence to practice;
considering interim suspension from practice; and

generally reviewing of fitness to practice.

[114] Nearer to the circumstances in this case, there is also an obligation on a PCC to afford a practitioner a reasonable opportunity to make written submissions and to be heard on a matter that is being investigated.30

[115] Mr Waalkens argued that by parity of reasoning, the Council should also be required to afford an opportunity to be heard in circumstances where a practitioner

29 Health Practitioners Competence Assurance Act 2005, ss 21(4), 39(3)(b) and 50(1)(b).
30 Section 80(4).

wishes to do so and can reasonably expect that a personal appearance would affect the prospects of an adverse outcome.

[116] For the Council, Mr Russell resisted this analysis. He submitted that Mr Waalkens’ references to provisions granting a right to be heard was not exhaustive, and that a detailed analysis of the scheme of the Act showed that the Act only required a practitioner to be given a right to be heard where the adverse outcomes extended to a risk of affecting the practitioner’s ability to practice. He therefore imputed to Parliament an intention to distinguish the formality and extent of hearings required by decision-makers including the Council, so that they were obliged to afford an opportunity to be heard to any practitioner whose ability to practice was in issue, but not to require that level of formality when matters in issue were less serious than that.

[117] I accept Mr Russell’s analysis of the statutory structure and agree that there is no justification for imputing a general obligation on the Council to afford an opportunity to a practitioner to be heard, merely because the practitioner asks for it, in cases where the practitioner’s ability to practice is not in issue.

[118] That leaves the subsidiary issue of whether, notwithstanding the absence of a uniform obligation to afford an opportunity to be heard on matters of this relative level of seriousness, in the circumstances of this case the Council ought to have granted Ms C’s request that she be heard. Sensibly, Mr Russell conceded that it would have been desirable for the Council to afford that opportunity, and even that an appearance by Ms C may have affected the outcome.

[119] The context of the complaint gave rise to two important factual issues on which an exchange of views with the practitioner would, in all probability, have enhanced the quality of the Council’s deliberations. First, whether the limited professional interactions between the complainant and Ms C constituted a doctor- patient relationship. Secondly, whether there were grounds for rejecting Ms C’s unequivocal statements that nothing in the nature of an intimate relationship with Ms A developed until after she had ceased having any professional interaction with the complainant.

[120] More generally, the PCC had felt able to attribute inappropriate attitudes to Ms C. Her challenge to that attribution of an inappropriate attitude was supported by Dr Marks. Where the Council was considering imposing an on-going obligation on Ms C, ostensibly to help her “cure” such an “inappropriate attitude”, it is to be expected that Council members would make a significantly better decision about both the existence of such an inappropriate attitude, and the prospects for it being improved, by a first-hand exchange with Ms C.

[121] It appears that Council members did not have the opportunity to consider Ms C’s request. Instead, it was dealt with by Council staff, apparently without reference to the chair or all members of the Council. That is apparently the usual practice in dealing with such requests. Mr Waalkens alluded to, but did not develop an argument that any decision on whether a practitioner’s request to be heard where the practitioner’s conduct was the subject of critical assessment by the Council was a non-delegable part of the Council’s responsibilities. In the circumstances as they have developed, it was unsatisfactory that the request was not considered by the Council, or at least the chair or his or her nominee.

[122] Balanced against all of those case-specific considerations, Mr Dunbar’s affidavit deposed that the Council considers between 20 and 25 PCC reports per year, and since his appointment in February 2009 he is only aware of one practitioner being invited to appear before the Council when it considered a PCC report.31 It is understandable that the Council might be wary of creating an expectation that practitioners wishing to appear in person in the less serious cases, where the statute
does not provide an entitlement to appear, can nonetheless demand to be heard. That does not mean that the Council should not carefully consider the justification for exceptions when appropriate cases arise.

[123] A discrete component of Mr Waalkens’ complaint on inadequacy of the opportunity to be heard was the lack of warning to Ms C that an adverse outcome might include an on-going obligation for her and mentors/counsellors to report back to the Council. So long as the Council had jurisdiction to make that order, the
prospect of this form of adverse outcome would not be sufficient to transform a

31 Affidavit of David Peter Dunbar sworn 28 September 2012 at [12].

process that did not require an opportunity to be heard into one that did require a hearing. Nonetheless, the unheralded prospect of that outcome does add to the respects in which the Council’s refusal to hear Ms C was unsatisfactory.

[124] Weighing all these considerations, I am satisfied that the Council ought to have recognised a case-specific obligation to hear Ms C. That arises because of the combination of contested factual matters on which any decision would depend, and the context in which the matter came before the Council. Although they are by no means determinative, I have assessed the relative need to afford Ms C an opportunity to be heard in light of the substantive criticisms of the Council’s decision. It is difficult to avoid the inference that the prospects for those errors would have been materially reduced, had a hearing occurred. This finding cannot be taken as recognising any more general right to be heard, in cases where the statute does not provide for that.

[125] I am not deflected from that finding by the opportunity which Ms C had to appear before the PCC. She had decided that it was unnecessary to appear at that stage, relying instead on her written submissions. Whether she assessed that her position would be accepted without an appearance at that stage, or for other reasons, the failure to avail herself of that opportunity would not necessarily disqualify her from asserting an expectation to be heard at the decision-making, rather than the recommendatory, stage.

Orders allegedly exceeded Council’s jurisdiction

[126] Ms C pursued an additional challenge, namely to the jurisdiction of the Council to make the orders requiring her to be counselled by third parties, to undertake mentoring, and for those involved in those processes to report back to the Council.

[127] Mr Waalkens argued that the Council, as “an authority” under the Act, is a creature of statute and cannot assert powers that are not given to it under the Act. On Mr Waalkens’ analysis, the only explicit jurisdiction for the Council to procure a third party to counsel a practitioner is in s 38(1)(d) of the Act. That appears in the

group of sections in Part 3 of the Act providing for reviews to be undertaken of the competence of a health practitioner. As to the outcomes of such reviews, s 38 provides:

38 Orders concerning competence

(1) If, after conducting a review under section 36, the [Council]32 has reason to believe that a health practitioner fails to meet the required standard of competence, the [Council] must make 1 or more of the following orders:

(a) that the health practitioner undertake a competence programme:

(b) that 1 or more conditions be included in the health
practitioner’s scope of practice:

(c) that the health practitioner sit an examination or undertake an assessment specified in the order:

(d) that the health practitioner be counselled or assisted by 1 or more nominated persons.

[128] The present matter has come to the Council from a PCC. The statutory provisions governing conduct of PCCs include s 80 which relevantly provides as follows:

80Recommendations 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) 1 of the determinations specified in subsection (3); or

(c) both.

(2) The recommendations referred to in subsection (1)(a) are—

(a) that the [Council] review the competence of the health practitioner to practise his or her profession:

(b) that the [Council] review the fitness of the health practitioner to practise his or her profession:

(c) that the [Council] review the practitioner’s scope of practice:

32 The text of the section uses the expression “the authority” of which the Council is one.

(d) that the [Council] refer the subject matter of the investigation to the police:

(e) that the [Council] 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.

…

[129] Section 81(3) provides that the Council on receipt of a recommendation under s 80(2) “must promptly consider the recommendation”.

[130] On Mr Waalkens’ analysis, the PCC could not recommend any more than that the Council counsel Ms C. He argued that the PCC has wrongly assumed that the broader powers available under s 38(1)(d) also apply to this circumstance, when they did not, because the additional power to order that a health practitioner be counselled or assisted by other persons only arises after a competence review undertaken s 36 of the Act. Mr Waalkens also disputed that the Council had jurisdiction to require mentors, counsellors and practitioners to report back to it on the relative success of mentoring/counselling.

[131] Mr Russell accepted that there is no explicit power for the Council to order counselling and mentoring as it did in this case. However, he argued for a range of reasons that the Act is to be interpreted purposively to recognise that the relevant power exists in order to make the statutory processes work as well as possible in the circumstances. He cited the approach of Cooke P in Northland Milk Vendors Association Inc v Northern Milk Ltd.33 The opening paragraph of that judgment observed:

This is one of a growing number of recent cases partly in a category of their own. They are cases where, in the preparation of new legislation making sweeping changes in a particular field, a very real problem has certainly not

33 Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 537.

been expressly provided for and possibly not even foreseen. The responsibility falling on the Courts as a result is to work out a practical interpretation appearing to accord best with the general intention of Parliament as embodied in the Act - that is to say, the spirit of the Act. In doing so we have to bear in mind that freedoms such as that of the owner of a business to conduct the business as he sees fit are not to be restricted unless it clearly appears that this must have been the intention of the legislature. Obviously therefore a great deal turns on the need for the Courts to appreciate and give weight to the underlying ideas and scheme of the Act.

[132] Mr Russell argued that the purpose of the Act as set out in s 3(1) 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 practice their professions. He submitted that purpose would be frustrated if the scope of a power to require a practitioner to take counselling was unrealistically narrowed by requiring any counselling following from a recommendation made by a PCC under s 80 of the Act to be provided in person by the Council. Mr Russell invited me to infer that counselling will routinely be better delivered by persons with qualifications suited to the job, than by “the Council”. In essence, he argued for an implied power on the part of the Council to delegate the task of counselling where it accepts a recommendation from a PCC under s 80(2)(e) for counselling of a practitioner to occur.

[133] The Act provides, in relatively extensive detail, for the procedures to apply in monitoring the conduct of health practitioners. It might be argued that, after relatively substantial volumes of litigation challenging the processes adopted for disciplinary proceedings under prior Acts, Parliament intended the procedures and powers to be spelt out exhaustively. Monitoring the conduct of health practitioners is a matter of long-standing public interest and the scope of a power for the Council to require counselling cannot readily be likened to the context in which wholesale changes had been made to the milk industry, as Cooke P was commenting on in the authority Mr Russell relied on.

[134] However, I am satisfied that the purpose of the Act is advanced by treating the jurisdiction of the Council, when considering a recommendation made by a PCC under s 80(2), as extending to directing that any counselling that should occur be undertaken with a person or persons who are not members of the Council. There is a

wide range of circumstances in which PCCs might recognise counselling as an appropriate outcome. Therefore it would confine the utility of such initiatives, without any justification consistent with the purposes of the Act, to limit the Council in a way that prevented it invoking the services of the most appropriately qualified person or persons as counsellors.

[135] I am also satisfied that the statutory structure should be interpreted as affording a measure of ancillary powers to the Council in circumstances such as the present. It is seized of the matter by virtue of the recommendation of the PCC, and it would unhelpfully narrow the scope of its powers to treat the Council as functus officio without any on-going jurisdiction in respect of a practitioner, once it had made a determination on a recommendation of the PCC.

[136] In this case, the Council appears to have intended that its outcome intrude upon Ms C’s on-going practice to a relatively modest extent. In cases where that response is considered appropriate, directions that enable the matter to come back before the Council can reasonably be implied as ancillary to its core functions. I am satisfied that the substance of the Council’s decision cannot stand by virtue of its being an unreasonable one. However, in the absence of such a finding, the Council’s decision to require a reporting back of the results of counselling could not, of itself, vitiate the decision on grounds that it had exceeded its jurisdiction.

Outcome

[137] Ms C is entitled to a declaration that the Council’s decision was unreasonable in the administrative law sense. In the particular circumstances of this case, the Council ought to have acceded to Ms C’s request that it hear her in defence of her position. The Council subsequently produced a decision that was not adequately reasoned to enable Ms C to understand why an adverse finding had been made in relation to her.

[138] If I reached this point, Mr Waalkens submitted that the decision should simply be quashed. For the Council, Mr Russell argued that that outcome was not open because of the absence of challenge to the PCC’s recommendation. Mr Russell

suggested that it would be open to the Council, if it had made a reviewable error, to undertake a fresh consideration of the PCC’s recommendation, potentially leading to a similar outcome.

[139] I am not satisfied that the absence of separate challenge to the PCC’s recommendation prevents relief quashing the Council’s decision. The scope of relief is to be assessed in the Court’s discretion, and ought to reflect the most appropriate outcome in light of the nature of the administrative law errors made out. In this case, I am satisfied that a simple quashing of the Council decision is appropriate. To the extent that leaves an extant PCC recommendation that will not be addressed, it does not prevent the formal relief that is otherwise appropriate.

Costs

[140] Ms C is entitled to costs. Both parties urged that I receive memoranda on costs subsequent to delivery of the judgment. Mr Waalkens will have a period of
21 days from delivery of this judgment to file a memorandum in support of costs, and Mr Russell will then have a period of 14 days after service of Mr Waalkens’ memorandum to reply.

Non-publication orders

[141] In the course of the hearing, Mr Waalkens made an oral application for an interim non-publication order. He argued that the Council’s approach to the complaint in this case did not recognise any need for publicity. At least pending the decision, he argued that the adverse consequences that would flow from Ms C being identified with the criticisms made of her substantially outweighed her entitlement to have judicial review fully considered.

[142] Mr Russell did not oppose an interim order, accepting that the Council’s

motivation in this case was educational rather than punitive.

[143] Given the outcome, I consider that the circumstances are sufficiently unusual to warrant the non-publication order being made permanent. I am satisfied that the

Council erred in its consideration of the PCC recommendation in relation to the complaint, and that there is no requisite public interest that would outweigh the interests of Ms C, the complainant and Ms A in having this matter brought to an end without the publicity that the factual circumstances might attract.

[144] Accordingly, there will be an order preventing publication of the name of Ms C, the complainant and Ms A, or the publication of any details that might lead to any one or more of them being identified. The Court file is not to be searched without the approval of a Judge.

Dobson J

Solicitors:
Fisher Lamberg, Auckland for plaintiff
Chen Palmer, Wellington for defendant

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Citations

C v Medical Council of New Zealand [2013] NZHC 825

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