Cullen v Health Practitioners Disciplinary Tribunal HC Auckland CIV-2007-485-1133
[2007] NZHC 2082
•31 August 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2007-485-1133
BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER FROM AUCKLAND Appellant
ANDHEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL Respondent
CONTINUES ON NEXT PAGE
Hearing: 21 August 2007
Counsel: Appellant in person
C R Carruthers QC for Professional Conduct Committee of the
Medical Council of New Zealand
J P Coates for the Medical Council of New Zealand
M K MacNab for Health Practitioners Disciplinary Tribunal
Judgment: 31 August 2007 at 4 pm
JUDGMENT OF BARAGWANATH J
This judgment was delivered by Justice Baragwanath on 31 August 2007 at 4 pm pursuant to Rule 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
Solicitors:
The Professional Conduct Committee of the Medical Council of New Zealand, Wellington Thomas Dewar Sziranyi Letts, Wellington for Health Practitioners Disciplinary Tribunal Buddle Findlay, Wellington for Medical Council of New Zealand
Counsel:
C R Carruthers QC, Auckland
M K MacNab, Auckland
CULLEN, MEDICAL PRACTITIONER FROM AUCKLAND V HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HC AK CIV-2007-485-1133 31 August 2007
CIV-2007-404-1811
AND BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Plaintiff
ANDHEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL First Defendant
ANDPROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Second Defendant
CIV-2007-404-2898
AND BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Plaintiff
ANDTHE MEDICAL COUNCIL OF NEW ZEALAND
Respondent
CIV-2007-404-2899
AND BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Plaintiff
ANDPROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Respondent
[1] Dr Cullen appeals against decisions of the Medical Council and the Health Practitioners Disciplinary Tribunal under the Health Practitioners Competence Assurance Act 2003 ordering his interim suspension from practice pending a substantive hearing before that Tribunal commencing 24 September 2007. The issue for determination is whether interlocutory decisions of the Medical Council and the Tribunal are shown to be wrong so that this Court should either set aside the suspension altogether or do so subject to conditions.
[2] There has to date been no substantive hearing. The Council, the Tribunal and this Court have all had to deal with the matter on affidavit evidence without the advantage of cross-examination. In accordance with a timetable order numerous affidavits are to be filed in preparation for the substantive hearing before the Tribunal on 24 September. Whatever the result of that hearing an appeal will lie to this Court and it is of the first importance that there should be no appearance of pre-determination.
[3] For that reason I do not propose to express more than the minimum reasons for my conclusion that, whether or not the Council and the Tribunal in fact erred in their respective assessments, it has not been shown on the limited material available to me that that is the case. The reason for particular care in expressing the reasons of this Court is that the subject matter of the charges before both the Medical Council and the Tribunal is the prescribing in unusually large quantities of the drug Sudomyl which contains pseudoephedrine. That drug can be both benign and malevolent. It is a well recognised remedy for common throat ailments. It is also defined by the Misuse of Drugs Act 1975 as a precursor substance, possession of which for the purpose of its conversion into methamphetamine is a criminal offence.
Practice
[4] Dr Cullen holds as well as his MBChB qualification to practise medicine the prestigious Doctor of Medicine awarded by the University of Auckland for research. His explanation for the unusually large prescriptions of Sudomyl is that he was engaged in a research project related to the subject matter of a published book of
which he is a co-author concerning medicine and Maori. It was, he says, his purpose to perform a test of reactions of pharmacy personnel to prescriptions on behalf of patients of different races in order to discern whether there is discrimination in their treatment and, if so, of what kind. He selected the drug Sudomyl as being commonly used for throat ailments but, in addition, for the very reason that it is controversial.
[5] It is the characteristic of the drug as a precursor substance that has attracted the attention of the medical authorities. They have produced in this Court a 2007 edition of Professor David Cole’s work St George (ed) Cole’s Medical Practice in New Zealand which states the need for ethical committee consent. At this stage there is no copy of any earlier edition that would have been available to Dr Cullen prior to embarking upon the course of conduct in question. For that reason little weight can be placed upon it for the purposes of the present application notwithstanding the pre-eminence of its principal and other authors.
[6] A more significant event was that on 20 December 2006, the doctor’s pattern of prescription having come to the attention of the authorities, a Gazette notice was prepared which would have prohibited Dr Cullen from prescribing controlled drugs from the time of publication onwards. Dr Cullen made urgent application to this Court for judicial review and on 10 January 2007 Priestley J made an order in the following terms:
[5] …. I … make an interim order prohibiting publication of notice in the Gazette of any exercise of the Minister’s powers under s 23 relating to the plaintiff. This order will remain in force until a further order of this Court.
[6] The order I have made is made against the background of the plaintiff’s undertaking to this Court that he will not prescribe the controlled drug pseudoephedrine. That undertaking will remain operative until the plaintiff is released from it.
[7] Nevertheless between 10 January 2007 and 28 February 2007 Dr Cullen issued some 232 prescriptions for Sudomyl. Dr Cullen says that he misapprehended the significance of his undertaking to the Court. Acting openly rather than covertly he wrote to the Medical Council’s counsel on 27 February 2007 purporting to withdraw his undertaking. His pattern of prescribing continued until at least
12 March 2007. That conduct resulted in an ex parte application by counsel
(not Mr Carruthers QC) on behalf of the Professional Conduct Committee to suspend him. On 29 March 2007 an order was made for his suspension.
[8] Dr Cullen responded by interlocutory application which resulted in an inter partes hearing on 23 April 2007. The Tribunal recorded that it had considered the matter de novo. It nevertheless concluded that unconditional suspension was again the appropriate order. Dr Cullen appealed against that decision and against an order of the Medical Council for interim suspension made on 17 April 2007. He also filed proceedings for judicial review against the Tribunal, and against the Council. A fifth proceeding – a statutory appeal under s 161 of the Act to the District Court – was also filed. Procedural directions in relation to all of these were given in an interlocutory judgment of 28 May 2007.
[9] I have emphasised that at this stage the matter has been considered only on the papers. But I am unable, at least in the absence of oral evidence, to accept Dr Cullen’s submission that he misapprehended the significance of his undertaking to the Court. It was in perfectly plain terms and was by way of merciful alternative to the Gazette notice. While Dr Cullen’s letter of 27 February 2007 may be described as “forthright” it was wholly misconceived: he could not grant himself a dispensation from the Court’s order by acting in such a fashion. His conduct was at the very least high-handed in the extreme.
[10] Dr Cullen recognised the difficulty of persuading this Court to adopt the option of allowing the appeal unconditionally and restoring him to an unconditional right of practice. But he urged that the course of allowing the appeal in part by permitting him to practise subject to stringent conditions be adopted. He submitted that the public would be protected by the conditions and, in a very different sense, by the restoration to practice of a practitioner who had been providing services to some thousands of patients in the south Auckland area who were otherwise unable to gain access to medical advice.
[11] While the legislative scheme is different, some aspects of the recent decision of the English Court of Appeal in General Medical Council v Hiew [2007] 1 WLR
2007 are of interest, in particular the way in which the Judge should view the opinion
of the Interim Orders Panel (IOP) of the General Medical Council. Giving the decision of the Court Arden LJ stated:
41... The judge held that the court “naturally [paid] great respect to the view of the evidence taken by the IOP”, in view of their “immense experience”. I would prefer to say that the approach of the court to the opinion of the IOP is not a question of giving respect but of attaching appropriate weight to the evidence in the ordinary way. In contrast to the giving of respect, there can be no automaticity about the attaching of weight to evidence. Weight does not attach to a person's evidence by virtue only of his experience or status. The giving of weight to opinion evidence entails a holistic evaluation of the persuasiveness of the evidence on the relevant issue, having regard to all relevant circumstances including its content as well as the viewpoint of the author of the opinion....
[12] Such approach is similar to that of the Privy Council in Preiss v General Dental Council [2001] 1 WLR 1926. It is also of interest to note that in the case of Dr Hiew, having been the subject of interim suspension following arrest on suspicion of conspiring to defraud the National Health Service, a status which the Court of Appeal considered should not be interfered with by the Court, the IOP reviewed the doctor’s suspension again and substituted for the interim suspension order an order imposing various conditions designed to ensure that the doctor practised under supervision.
[13] I have given particular consideration to whether that is a realistic option in this case. But the appeal faces the difficulty that, on the other side from the doctor’s contention that he was motivated to continue his academic research, is the fact that large quantities of Sudomyl were obtained by the doctor. There is no evidence beyond his say so and some rather general evidence from Mr Caccioppoli, chairman of the Papakura Urban Maori Authority which owns the medical practice at which Dr Cullen works, that pills were disposed of, as to what has happened to them. There is certainly open on the evidence before the Court a competing inference given:
a) the absence of ethical clearance;
b) the breach of the undertaking to this Court;
c) the continued pattern of acquiring pseudoephedrine; and
d)the absence of any meticulous system of demonstrating that the relatively large volume of pseudoephedrine for which the doctor had to pay personally had been disposed of lawfully rather than unlawfully.
It cannot be said on the evidence at present before the Court the decisions under appeal were wrong.
[14] That by no means signifies that on hearing further evidence the doctor’s account will necessarily be rejected. There may be open a finding that, given that he acted openly and wrote to tell the authorities of his change of position, he truly misapprehended the nature and effect of Priestley J’s order and truly believed that he was entitled to grant himself a dispensation from the Judge’s order by his letter of
27 February 2007. It may be that his conduct has been idiosyncratic, stubborn and wilful and performed without awareness of personal risk rather than that it was malevolent. But I am satisfied that it was open to the Tribunal and the Medical Council on the evidence before it to view the conduct pessimistically, and that at this stage their decisions have not been shown to be wrong.
[15] I do not doubt that what influenced the Tribunal, first in making its ex parte order and then in sustaining it following inter partes argument, is the pernicious character of pseudoephedrine when acquired for the purposes of conversion into methamphetamine. The same may be said of the decision of the Medical Council. That Dr Cullen disregarded the court order lends particular weight to the submissions of the Medical Council and the Tribunal that neither is shown to have been wrong in the decision it made not to permit the doctor to continue practising under stringent conditions. At this point I draw on the principles underlying the law of civil injunction expressed in American Cyanamid Co v Ethicon Ltd [1975] AC 396. The risk of wronging Dr Cullen if a decision to disallow the appeal was wrong is concerning, as is the option of depriving his patients of his care for a further period of at least five weeks when his patients will be without access to his care. But if, on the other hand, the decisions of the Medical Council and the Tribunal are right and there is a real prospect of the doctor’s using his privileged position to secure pseudoephedrine to provide to manufacturers, the result would be pernicious.
[16] Since I am not satisfied that the judgment made by the Medical Council and the Tribunal on the material before them was wrong, it follows that the appeals must be dismissed. But it is as well to emphasise that neither the existing decisions of the Medical Council and the Tribunal nor the present decision should be seen as having any relevance to the forthcoming hearing, which should be conducted without predisposition. That is the way in which any appeal to this Court from the forthcoming determination would be conducted. The case is clearly one requiring detailed examination of the evidence and then a careful evaluation of its significance against the law’s criteria.
[17] The appeals are dismissed but in the particular circumstances costs are reserved until after the determination following the 24 September hearing.
W D Baragwanath J
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