Cullen v Chief Executive of the Ministry of Health

[2018] NZHC 764

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2017-404-1750

[2018] NZHC 764

BETWEEN

RHYS MICHAEL CULLEN

Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF HEALTH

Respondent

Hearing:

20 April 2018

Appearances:

Dr R M Cullen in Person

S P Jerebine and T C Burgess for Respondent

Judgment:

20 April 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 20 April 2018 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Crown Law, Wellington Applicant:

CULLEN v THE CHIEF EXECUTIVE OF THE MINISTRY OF HEALTH [2018] NZHC 764 [20 April 2018]

Introduction

[1]                 The applicant, Dr Cullen, was formerly a medical practitioner before he was deregistered in 2007. He has continued to run a diabetes clinic, offering advice to diabetic patients.

[2]                 The Ministry of Health recently expressed the view to Dr Cullen aspects of his online presence, in combination, implied he is still practicing as a medical practitioner. Dr Cullen seeks declarations in response.

[3]                 The declarations are sought notwithstanding the Ministry’s invitation Dr Cullen comment on those allegations. Although he later provided such comment, that was not in evidence.

Background

[4]                 The Ministry’s view and invitation was expressed in a letter dated 16 May 2017 (the “letter”):

Health Practitioner Competence Assurance Act 2003

The Ministry of Health has received a complaint in which it is alleged you may have committed an offence against section 7 of the Health Practitioner Competence Assurance Act 2003.

Section 7 of the Act makes it an offence to use names, words, titles, initials, abbreviations, or descriptions stating or implying that an unregistered person is a registered health practitioner.

Section 7(1) states:

“A person may only use names, words, titles, initials, abbreviations, or descriptions stating or implying that the person is a health practitioner of a particular kind if the person is registered, and is qualified to be registered, as a health practitioner of that kind”.

Section 7(2) states:

“No person may claim to be practising a profession as a health practitioner of a particular kind or state or do anything that is calculated to suggest that the person practises or is willing to practise a profession as a health practitioner of that kind unless the person—

(i)is a health practitioner of that kind; and

(ii)holds a current practising certificate as a health practitioner of that kind.”

As you are no longer registered you must be very careful to not imply you are a registered health medical practitioner.

I note on your home page you state “in 2006 I was a full time medical practitioner with an interest in research……now my medical practice is part time”.

On your blog you comment that “if you visit a convictional doctor” and you also talk about “best practice for medical doctors”.

It is the Ministry’s view that these online references combine to imply you are still practicing as a medical practitioner.

It is important you are aware of your obligations under the Act, and ensure the titles and descriptions you use, do not cause any confusion.

The Ministry’s approach in enforcing the Act is to first seek compliance. In cases where persons are unwilling to comply with the Act, the Ministry may seek to prosecute. Prosecutions under section 7 carry a fine of up to $10,000.

Could you please comment on these allegations by 26 May 2017 and any plans you have to ensure your online presence complies with the Act?

The Ministry administers the Health Practitioner Competence Assurance Act 2003 (the “Act”). Section 7(5) provides: “Every person commits an offence punishable on conviction by a fine not exceeding $10,000 who contravenes this section”.

[5]The declarations sought were:

(a)the applicant’s use of the title “Doctor” in the context of his provision of health services does not breach s 7(1);

(b)the applicant is not practising a health profession;

(c)the phrases mentioned in the letter – “in 2006 I was a full-time medical practitioner with an interest in research … now my medical practice is part-time”, “if you visit a conventional doctor”, and “best practice for medical doctors” – do not breach s 7(2); and

(d)material hosted on a server based outside New Zealand cannot be in breach of s 7(1) or s 7(2). Statements made outside New Zealand by a person resident outside New Zealand cannot breach s 7(3).

[6] During his submissions, Dr Cullen abandoned the declarations sought at [5](d) above. Sarah Jerebine appeared for the respondent. During her submissions in response, Dr Cullen abandoned the declaration sought at [5](b) above.

Discussion

[7]                 The Court’s jurisdiction to give declaratory relief is broad, but its discretion to do so is exercised carefully.1 Of relevance here is the approach taken in Ambrose v Attorney-General, in which Winkelmann J observed:2

Courts have traditionally proceeded with great caution when exercising the discretion to issue declarations as to whether or not certain conduct amounts or will amount to the commission of a criminal office. This is because to make such a declaration risks usurping the function of the criminal court (including the function of a Judge or a jury to find the facts). As Lord Lane put the matter in Imperial Tobacco v Attorney-General:

The criminal court would not be bound by the decision. In practical terms it would simply have the inevitable effect of prejudicing the criminal trial one way or another.

[8]                 Her Honour declined to provide declaratory relief in comparable circumstances, given:3

… the inadequacy of the evidentiary material before [her] to reach such a view, and in any event, the inappropriateness of [her] undertaking a mini trial as to whether certain conduct constituted a criminal offence, when exercising the Court’s civil jurisdiction, and in advance of a police investigation or trial.

[9]                 Dr Cullen sought to convince me the declarations he sought were not context- dependent, but instead open to being granted by reference to the Ministry’s letter and interpretation of the Act’s s 7 alone. But the first declaration he seeks expressly refers to “the context”, and the word “use” in that sought declaration also requires contextual support. Similarly, he argued for the other declaration he sought by reference to a further statement on his website he was “no longer registered as a medical practitioner in New Zealand”.

1      Re Chase [1989] 1 NZLR 325 (CA) at 333.

2      Ambrose v Attorney-General [2012] NZAR 23 (internal citations omitted) at [36].

3 At [55].

[10]             Plainly the context of Dr Cullen’s conduct is critical in determining whether or not that conduct breaches s 7. The Ministry’s letter is clear it has only formed a preliminary view as to that conduct, from which it may conduct further investigation, subject to Dr Cullen’s invited comment. I have only the most skeletal of evidence of that context, which is for the Ministry to investigate. Ms Jerabine advised the Ministry’s investigation has paused, pending this Court’s determination of Dr Cullen’s application for declarations.

[11]             Even had I adequate (agreed or uncontested) evidence on which to consider making the declarations sought, the exercise of that discretion would still be inappropriate in circumstances in which I must make an evaluative assessment of that evidence in this civil proceeding as to its relevance in criminal proceedings. And my declarations would doubtless influence the Ministry in the exercise of its own prosecutorial discretion, and any court subsequently engaged by it. The impropriety of such influence is a further factor against the exercise of my discretion.

Result

[12]             For those reasons – the absence of relevant evidence on, and the inappropriateness of declaratory relief in, the circumstances – I decline Dr Cullen’s application.

Costs

[13]             I heard no submissions on costs. In principle, the unsuccessful party should make a contribution to the successful party’s legal expenses, in accordance with scale, in an amount no greater than was incurred by the successful party – to the end “so far as possible the determination of costs should be predictable and expeditious”.4

[14]             In my preliminary view, Dr Cullen should be liable to pay 2B costs to the respondent, including for two counsel, and actual and reasonable disbursements as certified by the Registrar. If that is not accepted by either party, and costs cannot otherwise be agreed between them, costs are reserved for determination on short

4      High Court Rules, r 14.2.

memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:

(a)the respondent within ten working days of the date of this judgment;

(b)Dr Cullen within five working days of service of the respondent’s memorandum; and

(c)the respondent strictly in reply within five working days of service of Dr Cullen’s memorandum.

—Jagose J