Donnelly v Royal Australasian College of Surgeons
[2020] NZHC 242
•21 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-948
[2020] NZHC 242
UNDER the Judicial Review Procedure Act 2016 BETWEEN
SINEAD DONNELLY, DENISE AITKEN, ALAN JENNER, JOHN THWAITES and DAVID TRIPP
Plaintiffs
AND
THE ROYAL AUSTRALASIAN COLLEGE OF PHYSICIANS
Defendant
Hearing: 7 and 8 October 2019 Counsel:
V E Casey QC for Plaintiffs
D J Friar and G R Garcia for Defendant
Judgment:
21 February 2020
JUDGMENT OF ELLIS J
Table of Contents
Paragraph No.
THE RACP [6]
The Constitution [7]
The Board and its Committees [10]
BACKGROUND [17]
Dr Donnelly’s request and subsequent events [51]
The Final RACP Statement [118]
THE PLAINTIFFS’ CLAIM [119]
DONNELLY and Ors v ROYAL AUSTRALASIAN COLLEGE OF PHYSICIANS [2020] NZHC 242 [21
February 2020]
Discussion [122]
Illegality or breach of the Constitution[125]
Failure to meet the Board’s obligations of fairness, transparency
and accountability [131]
Breach of legitimate expectation [132]
Improper purpose [140]
Deliberate and knowing overriding of the constitutional rights
and legitimate concerns of the requesting members [141]
Discretion [144]
The law [148]
Application of the principles in this case [158] Conclusion [165]
[1] The five plaintiffs are all physicians. Each is opposed to any involvement of medical practitioners in euthanasia, or “voluntary assisted dying”.1 They say their stance reflects the longstanding ethical underpinnings of the medical profession.
[2] Each of the plaintiffs is, of necessity, a Fellow of the Royal Australasian College of Physicians (the RACP, or the College). Fellowship of the RACP is not optional for doctors wishing to practise as physicians in New Zealand. The RACP’s constitutional objectives include ensuring a high standard of medical care for the people of Australia and New Zealand and (in that context) both developing and advocating health and social policy. The College presently has approximately 17,000 Fellows and 8,000 trainee members.2
[3] In November 2018, the Board of the RACP (the Board) issued a public statement indicating that, in light of the diversity of view among the College’s
1 Euthanasia means “The practice of intentionally ending a life in order to relieve pain and suffering”, Peter Spiller New Zealand Law Dictionary (9th ed, LexisNexis, Wellington, 2019) at
108. “Voluntary assisted dying” is the term ultimately adopted by the defendant in the Statement which is the focus of the present claim. The use of the word “voluntary” is intended to emphasise the importance of a patient’s informed consent. The End of Life Choice Bill (presently before the New Zealand Parliament and the subject of an upcoming referendum) uses the term “assisted dying” which it defines as “the administration by an attending medical practitioner or an attending nurse practitioner of medication to the person to relieve the person’s suffering by hastening death; or the self-administration by the person of medication to relieve their suffering by hastening death”.
2 Physicians undertake training with the RACP in order to obtain a specialist qualification (Fellowship).
membership, it took a “clinical approach of critical neutrality” on voluntary assisted dying.3 The plaintiffs say that “neutral”, here, necessarily means “not opposed” and so is contrary to the position previously taken by the New Zealand Committee of the RACP, contrary to the public position of the World Medical Association,4 and contrary to the ethical obligations of all doctors. They now seek judicial review of the Board’s decision to issue the statement on the grounds that it followed a flawed and unlawful process.
[4] I record at the outset that it is not disputed that, in principle, this Court has jurisdiction to hear the plaintiffs’ application, nor that board decisions are amenable to review in New Zealand. By virtue of the College’s incorporation in Australia, however, it is Australian law that governs any company law issues that arise in this case. As it happens, it appears that for present purposes there is no material difference between the two jurisdictions.
[5] Before addressing the substantive application, it is useful to begin by saying a bit more about the underpinnings of the RACP and its operation. I will then set out the narrative of relevant events, before turning to the specific issues raised on review.
THE RACP
[6] As just noted, the College is incorporated as a public company limited by guarantee under the Australian Corporations Act 2001 (Cth). Section 134 of that Act provides that the internal management of a company may be governed by that Act, the company’s constitution or both. Section 136(2) provides that a company’s
3 What is meant by “critical neutrality” will become evident later in this judgment.
4 As well as the World Medical Association Declaration on Euthanasia (adopted in 1987 and reaffirmed most recently in 2015), Dr Donnelly referred me to the World Medical Association Statement on Physician-Assisted Suicide (adopted in 1992 and reaffirmed most recently in 2015), the New Zealand Medical Association’s Position Statement on Euthanasia (adopted in 2005 and reaffirmed in 2017), the Statement by the Australian and New Zealand Society of Palliative Medicine (adopted in October 2013 and updated in March 2017) and Position Statements on Euthanasia issued by Hospice New Zealand (December 2017) and the Palliative Care Council of New Zealand (June 2013).
For completeness, however, I note that the World Medical Association updated its stance in October 2019 (the month of the hearing before me). The Association no longer terms euthanasia “unethical” but, rather, states that it is “firmly opposed” to it.
constitution may be modified by a special resolution (defined as requiring a 75 per cent majority).5
The Constitution
[7] The present Constitution of the RACP (the Constitution) dates from 2007.6 The Constitution states that the objectives of the College are to:
1.1.1promote the highest quality health care and patient safety through education, training and assessment;
1.1.2educate and train future generations of physicians;
1.1.3maintain professional standards and ethics among physicians through continuing professional development and other activities;
1.1.4promote the study of the science and art of medicine;
1.1.5bring together physicians for their common benefit and for scientific discussions;
1.1.6increase the evidence and knowledge on which the practice of physicians is based through research and dissemination of new knowledge and innovation to the profession and the community;
1.1.7seek improved health for all people by developing and advocating health and social policy in partnership with health consumers and jurisdictions; and
1.1.8support and develop physicians as clinicians, public health practitioners, teachers and researchers.
[8] Particularly relevant for present purposes is cl 5.2, which deals with General Meetings of the College. It relevantly states:
5.2.2The Board must call a general meeting of the College … if the College receives a written request from the lesser of:
(a)at least 5% of members who are entitled to vote at the general meeting; or
(b)at least 100 members who are entitled to vote at the general meeting.
and the written request:
5 Section 32(2) of the Companies Act 1993 (NZ) also requires a 75 per cent majority for a special resolution to amend the company’s constitution.
6 It has since been amended in 2008, 2009, 2012, 2015, 2016 and 2017.
(c)states the resolutions to be proposed at the general meeting; and
(d)is signed by all the members making the request.
5.2.3If members requisition a general meeting under clause 5.2.2,
(a)the Board must call the general meeting within 21 days after the request is given to the College;
(b)the meeting must be held within two (2) calendar months after the request is given to the Board.
5.2.4If the Board does not call a general meeting that was requisitioned by members under clause 5.2.3 within 21 days after the request is given to the College, then members with more than 50% of the votes of all the members who made the request under clause 5.2.2 may call and arrange to hold a general meeting.
[9]In terms of voting, the Constitution provides:
6.5.1At a general meeting a resolution put to the vote of the meeting is decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded.
6.5.2Subject to this Constitution, every member entitled to vote and present in person has one vote on a show of hands and every member entitled to vote and present in person or by proxy has one vote on a poll.
…
The Board and its Committees
[10]Clause 7.1 of the Constitution provides that:
The management and control of the business and affairs of the College shall be vested in the Board. The Board may exercise all such powers and do all such acts and things as the College is authorised to exercise and do.
…
[11] Similarly, the President or the Board may authorise others to represent the College:
7.5Representations on behalf of the College
7.5.1The President or the Board may authorise any College Body or individual to represent the College before any government or governmental body or committee or to make statements or express views on behalf of the College. The authority may be given generally
or for a specific situation and may be given on such conditions as the President or Board thinks fit.
7.5.2Unless duly authorised to do so under this clause, no member may make any statement or express any view which purports to be a statement or view of the College or as having been made or expressed on behalf of or with the concurrence of the College.
[12] Board Committees are established under by-laws made pursuant to cl 7.4.2 of the Constitution. There are several committees of relevance to the present proceedings:
(a)the College Policy and Advocacy Committee (the CPAC);
(b)the New Zealand Committee (the NZC); and
(c)the Ethics Committee (the EC).
[13] The by-law establishing the CPAC explains that this Committee was to “coordinate consistent and effective policy and advocacy across the College”. The CPAC consists of a Council and an Advisory Committee. The Council has a decision- making and strategic planning role. The Advisory Committee is required to be established by, and reports to, the Council. It is charged with managing the business and interests of the CPAC.
[14] The NZC was established by by-law in August 2011. Its functions are essentially focused on advancing the interests of the College in New Zealand, engaging on New Zealand issues and ensuring that a New Zealand perspective is available to the Board.
[15] The by-law makes it clear that the NZC must not represent or imply in any way that it is independent of the RACP, and that it must report as required to the Board.
[16] It is against the above governance background that the factual narrative in this case must be understood.
BACKGROUND
[17] A useful starting point is the entry by the then Labour MP, Hon Maryan Street, of an End of Life Choice Bill in the ballot of members’ Bills in July 2012.7 The NZC prepared a draft position statement in response to the proposed Bill. That draft statement began by recording that:
The Royal Australasian College of Physicians (the College) has developed the following position statement in the context of the proposed End of Life Choice Member’s Bill. This Bill could significantly affect physicians’ daily practice and its potential consequences sit alongside the increased political and social debate on euthanasia and physician-assisted suicide in New Zealand. It is recognised there are diverse views within the College and the broader community on the question of euthanasia and physician assisted suicide.
[18]Then, it stated:
Position
The College acknowledges the wide range of perspectives and ethical views in New Zealand on euthanasia and physician-assisted suicide.
The College maintains that:
·Euthanasia and physician-assisted suicide are not part of palliative care practice (in accordance with the Australia and New Zealand Society of Palliative Medicine’s position statement and Hospice New Zealand’s statement).
·The practice of euthanasia and physician-assisted suicide is not within the professional boundaries, nor the authority of the physician.
The College supports the World Medical Association Declaration on Euthanasia that states:
Euthanasia, that is the act of deliberately ending the life of a patient, even at the patient’s own request or at the request of close relatives, is unethical. This does not prevent the physician from respecting the desire of a patient to allow the natural process of death to follow its course in the terminal phase of sickness.
[19] The CPAC reviewed the draft position statement and provided comments for the Board’s consideration at its meeting in March 2013. The minutes note the NZC’s intention that it be used as part of a communication plan to “assist the College in
7 Earlier attempts by other MPs to introduce similar such Bills (in 1995 and 2003) had failed.
contributing to any public debate on the issue in New Zealand, or if submissions or comments to relevant bodies are requested”.
[20] The minutes record that the Directors agreed not to make substantive changes to the draft position statement but did propose amending it to include the heading “A Position Statement by the New Zealand Committee of the Royal Australasian College of Physicians”. Directors also suggested that the introduction be slightly changed to include a statement which recognised “there are diverse views within the College and the broader community on the question of euthanasia and physician assisted suicide”. The Board passed a motion to approve the statement, as amended.
[21] In September 2013, however, Ms Street withdrew her Bill from the ballot, in advance of the upcoming (2014) election.
[22] A year later, at another Board meeting, the chair of the NZC advised some recommended changes to the position statement approved in March 2013. The suggested changes arose “following consultation with the Maori Health Committee to include a unique Maori perspective on death and dying in the statement, and to align the statement with the World Medical Association’s Declaration on Euthanasia”. The amended statement was proposed to be a position statement “of the New Zealand Committee of the College, not a position statement of the whole College”.8 Directors approved the amendments as presented and authorised its publication in the New Zealand newsletter only (not on the College’s website).9
[23] In February 2015 the Canadian Supreme Court issued its decision in Carter v Canada, overturning a ban on physician-assisted dying.10 The Supreme Court held that the criminal prohibitions on assisted dying infringed the right to life, liberty and security of the person guaranteed by s 7 of the Canadian Charter.11 It held that these criminal prohibitions were overbroad and therefore not in accordance with principles
8 It had been endorsed by the New Zealand Policy and Advocacy Committee and the New Zealand Adult Medicine Division Committee.
9 For reasons that are not entirely clear to me, the position statement was not subsequently published in this newsletter.
10 Carter v Canada (Attorney-General) [2015] SCC 5, [2015] 1 SCR 331.
11 At [66].
of fundamental justice.12 The Court awarded a declaration that those provisions were void insofar as they prohibited physician-assisted death for competent consenting adults suffering from irremediable medical conditions causing intolerable suffering.13
[24] At about the same time, the CPAC established an End of Life Working Party (EOLWP) to determine the College’s approach to promoting good end of life care. Both the New Zealand position statement and that of the Australian and New Zealand Society of Palliative Medicine were referred to the EOLWP for consideration.
[25] Also at around this time, Ms Lecretia Seales, who was suffering from a terminal brain tumour, filed proceedings in this Court seeking declarations as to whether her doctor could lawfully administer her with a fatal drug or provide her with such a drug to administer herself. This Court subsequently (in June 2015) held that assisted dying was not lawful in New Zealand.14 Collins J concluded:15
The complex legal, philosophical, moral and clinical issues raised by Ms Seales’ proceedings can only be addressed by Parliament passing legislation to amend the effect of the Crimes Act. … [T]he fact that Parliament has not been willing to address the issues raised by Ms Seales’ proceeding does not provide me with a licence to depart from the constitutional role of Judges in New Zealand.
[26] Later in May 2015, the Legal and Social Issues Committee of the Victorian Parliament received terms of reference for an Inquiry into end of life choices from the Victorian Legislative Council. The terms of reference required the Committee to inquire into, consider, and report on the need for laws in Victoria to allow citizens to make informed decisions about their own end of life choices.
[27] The Victorian Inquiry duly called for submissions. A briefing paper prepared for the CPAC later (in October 2015) explains the response of the College:
The Chapter of Palliative Medicine Committee expressed a strong view that the College should make a submission to this inquiry stating that euthanasia and physician-assisted dying are unethical and endorsing the ANZPM16 and [the NZC] position statements. The Chapter viewed the Inquiry as a potential
12 At [86].
13 At [127]. This declaration was suspended for 12 months to allow Parliament time to respond.
14 Seales v Attorney-General [2015] NZHC 1239, 3 NZLR 556.
15 At [211].
16 The Australian and New Zealand Society of Palliative Medicine.
turning point and a risk that changes to the law may be brought about that would require doctors to undertake euthanasia and physician-assisted suicide.
CPAC approved the development of a submission. Following the distribution of the draft submission for consultation, the majority of responses were supportive. However, a member of the Victorian State Committee strongly objected to the position taken on euthanasia and assisted suicide in the submission, arguing that it is unbalanced, and does not adequately take into account the beliefs and needs of patients, or the literature suggesting that … the availability of euthanasia does not compromise availability of palliative care resources. It is known that other Fellows of the College hold similar views.
Feedback was also received from an Ethics Committee (EC) member suggesting that euthanasia and physician-assisted dying be discussed separately due to the complexity of ethical considerations around each of these issues.17
The submission was revised to soften the stance on these issues given the diverse feedback and lack of adequate time to develop a considered position, while noting the ANZPM position. CPAC approved the revised submission.
[28] On 23 June 2015 Iain Lees-Galloway MP presented a petition received from Hon Maryan Street asking:
That the House of Representatives investigate fully public attitudes towards the introduction of legislation which would permit medically-assisted dying in the event of a terminal illness or an irreversible condition which makes life unbearable.
[29] The petition was referred to the Health Select Committee which began oral hearings in August 2016.18
[30] In July 2015, a General Meeting of RACP members was held to consider proposed amendments to the Constitution. One such proposal was that the Constitution be changed to include the following clause:
Notwithstanding anything else in this Constitution, the Members of the College may by a majority vote at a General Meeting of the College direct and
17 On 17 August 2015 the EC had met and expressed the view that there was a need for “substantive engagement with the complex ethical aspects of euthanasia and physician assisted dying”. The EC was concerned that policy development and consultation not be undertaken with the aim of authorising or legitimising a pre-established view. Consequently, the EC wrote to the CPAC to express an interest in collaborating and seeking clarification on this work.
18 After receiving a total of 21,891 written submissions, the New Zealand Health Select Committee’s report on Maryann Street’s petition was presented on 2 August 2017. No recommendations about introducing assisted dying legislation were made, and the report noted that decisions on issues like this were “generally a conscience vote”. Palliative care services were also a “common focus in the submissions process”.
authorise the Board to develop or implement certain policies or undertake certain actions, provided that such directions and authorisations are in accordance with the law and consistent with the Objects of the College.
[31]The proposed amendment did not pass the required 75 per cent vote.
[32] In September 2015 there was a Board meeting, during which there was comprehensive discussion of the NZC’s position statement and the implications it might have for the RACP as a whole. The minutes recorded the Board’s expectation that the College would be invited to appear before the New Zealand Health Select Committee and that Fellows would participate in the political and public debate on the subject of medical assistance in dying. The Board considered whether the previously approved statement of the New Zealand Committee could or should become a position statement on behalf of the entire College, and determined that it should:
(a)put the NZC’s position statement approved in March 2014 to one side and use it as a source document only when developing a statement for the New Zealand Health Select Committee through the normal CPAC processes; and
(b)request that the CPAC Council develop an interim position regarding Euthanasia/Physician Assisted Suicide with input from the EC.
[33] Following her attendance at this meeting, the then Director of the CPAC provided a briefing paper to that Committee. She noted the diversity of views on the issue of euthanasia/physician-assisted dying, the recent developments in both New Zealand and Australia, and that there had been calls from “various parts of the College (Adult Medicine Division, Chapter of Palliative Medicine, NZ Committee) and individual Fellows to develop a College position on euthanasia and physician assisted dying”. She proposed that either:
(a)the CPAC request that the EOLWP and the EC collaborate to develop the position statement based on a robust consideration of the evidence and the ethical arguments, rather than any previously established position; or
(a) the CPAC establish a Euthanasia and Physician Assisted Dying Working Party—including members from the EC and others with relevant expertise—to develop the position statement based on a robust consideration of the evidence and ethical arguments.19
[34] At its meeting in October 2015, the CPAC agreed on the second of these options. A new Euthanasia and Physician-Assisted Death Working Party (the Working Party) was established.20 The minutes record that the CPAC was particularly concerned to ensure that the diversity of views within the College were heard and that the conversation was balanced and robust. Representatives from the EOLWP, the EC, and the Chapter of Palliative Medicine would be invited to express interest in becoming members of the new Working Party.
[35] On 15 October 2015, the New Zealand ACT MP, David Seymour, entered his End of Life Choice Bill in a ballot of members’ Bills.
[36] In early November 2015, the President of the NZC made a submission to the Chair of the New Zealand Health Select Committee, saying that the RACP “welcomes the opportunity to contribute to the Parliamentary Inquiry to ‘fully investigate public attitudes towards the introduction of legislation which would permit medically assisted dying…’” and that:
(a)there were diverse views within the College on the issues;
(b)the College was currently developing a cross-College position statement on euthanasia and physician-assisted dying which would address the substantive ethical issues;
(c)in the meantime, the NZC had consulted with key Fellows and College bodies to inform its submission, which reflected the views of the NZC, whose intent was to address the NZC’s broad ethical concerns;
19 Noting that the EOLWP would retain responsibility for the Palliative Sedation position statement.
20 The Working Party was initially named the “Euthanasia and Physician-Assisted Dying Working Party” but was changed by CPAC to the “Euthanasia and Physician-Assisted Death Working Party” on 4 February 2016 on advice from the Ethics Committee (because it encompasses more specific terms and was considered a more neutral “umbrella” term).
(d)the main such concern was that any change to existing law that permitted “medically-assisted dying” would implicate its members, and would significantly affect physicians’ daily practice, against a background of diverse and divergent views on the issues.
[37] After expressing the NZC’s concerns about “potential and unintended consequences and associated complexities” of legalising assisted dying, the submission records the view that “providing good end-of-life care to all patients negates the need for euthanasia”. In summarising the submission, it concludes as follows:
1.This submission of the New Zealand RACP Committee, rather than the RACP, recognises that strong and opposing views are held within the medical profession and in the community on the issues of euthanasia and physician assisted dying.
2.The New Zealand RACP Committee notes that many doctors are against euthanasia and physician assisted dying and will not choose to be involved. We urge the Inquiry to adequately address alternative arrangements not requiring the input of doctors in the proposed Bill.
3.The New Zealand RACP Committee supports the provision of high quality accessible and equitable palliative care as a priority in New Zealand.
4.The New Zealand RACP Committee upholds Māori perspectives on death and dying, and the statement on the World Medical Association’s Declaration on Euthanasia.
5.The New Zealand RACP Committee is concerned about potential unintended consequences and associated complexities of legalising euthanasia and physician assisted dying in New Zealand.
6.The New Zealand RACP Committee wishes to draw the Health Select Committee[’s] attention to the points raised in the main concerns section of this submission as those to be addressed during the Inquiry on euthanasia and physician assisted dying.
[38] Later in November 2015 the EC met and provided advice on the scope, Terms of Reference (TOR), and expression of interest process for the Working Party. It acknowledged the importance in developing a timely position statement for the RACP.
[39] In December 2015, the CPAC approved the prepared TOR and the proposed selection criteria for membership of the Working Party. Subsequently, a total of 38 expressions of interest were received from a wide range of specialties and, in March
2016, the selection panel finalised a list of proposed members to be sent to the CPAC for approval.21 The accompanying briefing paper explained that the individuals chosen reflected “the strength of their responses to the selection criteria, and the need for a diversity of: clinical background and experience; views on physician assisted death; cultural perspectives; gender; and geographical location”. The list comprised:
(a)Dr George Laking (a New Zealand oncologist) as proposed Chair of the Working Party;
(b)Associate Professor Andrew Cole (an Australian specialist in rehabilitation medicine) as proposed Deputy Chair;
(c)four physicians with a background in palliative care (one being paediatrics);
(d)one physician with a background in geriatric medicine;
(e)one physician with a background in neonatal/perinatal medicine;
(f)one physician with a background in neurology; and
(g)one physician with a background in endocrinology.
[40] The briefing paper went on to note that one of the members of the selection panel, Dr Blackmer, had given advice on the process adopted by the Canadian Medical Association to develop its position on assisted death against the background of the Carter decision,22 and that:
The CMA has taken a neutral position on the issue, recognising that it is the prerogative of society to change the law, but with the aim of ensuring maximum physician influence in this process. The protection of physicians’ rights has been a major focus (including conscientious objection). The CMA’s position was passed with 91% membership support.
21 One of the plaintiffs, Dr Donnelly, applied to be on the Working Party, but was unsuccessful.
22 See Carter v Canada (Attorney-General), above n 10.
[41] The Panel concluded by referring to the New Zealand Parliament Health Select Committee’s Inquiry and noting that the NZC had already made a submission to the Inquiry based on the unpublished NZC position statement, which the CPAC had previously approved.
[42] The selection of the proposed Working Party members was confirmed by the CPAC by the end of March 2016.
[43] In July 2016 the Working Party held its first meeting; it met another five times between August 2016 and May 2017. On each occasion members were provided with a large quantity of pre-meeting materials. Following the sixth meeting, a discussion paper written by the Working Party was distributed to members of the College as part of the consultation process. The paper began by noting that its object was to serve as “a starting point for physicians to consider the issues associated with medical assistance in dying of competent adults at the end of life, and the ways in which its legislation could affect physicians in their daily work”. It goes on to explain that the discussion paper was “not in itself intended to be a statement either for or against medical assistance in dying” and instead was to help Fellows and trainees give feedback as the RACP develops its approach.
[44] In early October 2017, the Working Party met for the seventh time. By this stage, a number of responses from both groups and individuals on the discussion paper had been received. It appears the tenor of the responses was a mixture of supportive, opposed, neutral, or unclear.
[45] A subsequent briefing paper prepared by the Working Party for the CPAC records the “extensive consultation and engagement with the membership on the discussion paper” and that a “well-received consultation session on the discussion paper” was held and attended by approximately 70 Fellows. It goes on to detail conversations with various College bodies on the discussion paper, and records that a large volume of written feedback was received (approximately 80 emailed submissions totalling more than 180 pages). The Working Party advised it had engaged consultants (Woolcott Research and Engagement) to support the remaining consultation activities and to draft a consultation report for approval. These activities
were to include an online survey, three deliberative forums (including one in New Zealand) and an online forum/webinar. The CPAC agreed to extend the date for the Working Party’s report to December 2017.23
[46]In November 2017 those three face-to-face forums occurred: in Auckland,
Sydney and Melbourne. Dr Donnelly attended the Auckland forum.24
[47] On 13 December 2017, Mr Seymour’s End of Life Choice Bill had its first reading and was referred to the Justice Select Committee. The deadline for submissions was 6 March 2018.
[48] Also in December 2017, the Voluntary Assisted Dying Act 2017 (Vic) received Royal assent. The commencement of the Act was, however, deferred until June 2019, allowing for an 18-month implementation period.
[49] On the closing date for submissions on Mr Seymour’s End of Life Choice Bill, the Royal New Zealand College of General Practitioners (RNZCGP) announced that it had taken a “neutral” position on the issues. This was reported by members of the New Zealand media under the banner “Big gains for the euthanasia campaign”, where it was said:25
The same day [Justice Select Committee] submissions closed, there was an announcement with great significance for the euthanasia debate but it failed to get attention. The Royal New Zealand College of General Practitioners – which has 4800 members, representing nearly 90 per cent of GPs – announced publicly in its submission that it had adopted a neutral position on assisted dying.
Unfortunately, you’d never guess from the headline on its press release – “College of GPs does not endorse euthanasia” – but when Noted asked the college it confirmed it was, indeed, neutral: “We are not taking a position either way. Our board decided it was a decision for members to make as individuals”.
...
23 The Working Party’s TOR stated its initial term was for 12 months from its first face-to-face meeting, which was on 18 July 2016.
24 In her affidavit, Dr Donnelly expressed concern about the way the session was promoted, attended and run.
25 Graham Adams “Big gains for the euthanasia campaign” NOTED (online ed, New Zealand, 8 March 2018).
The biggest medical college in New Zealand taking a neutral position in public is momentous. As Auckland health lawyer and end-of-life researcher Pam Oliver told Noted: “That’s a major move by the college and will have considerable influence. The research evidence is pretty clear that a neutral or supportive stance by the relevant medical association, or college, is pivotal in doctors feeling comfortable to engage in providing assisted dying services. Anecdotally, it also appears to have a strong influence on whether politicians will vote in favour of legal [assisted dying].
[50] It appears the Working Party’s revised December 2017 deadline was not met. Between February and April 2018, the Working Party met four more times. Further extensions of time were sought throughout the process to accommodate further refinement of the draft position statement, which was eventually completed and approved for distribution internally on 14 March, with an initial deadline for responses by 29 March. Due to feedback from College members that this timeframe was too short, on 13 April an email was sent to all members re-attaching the draft position statement and stipulating a new 11 May deadline for response.
Dr Donnelly’s request and subsequent events
[51] It is at this point in the narrative that the events more directly relevant to the plaintiffs’ claim begin to unfold.
[52] On 13 April 2018 (the date on which the draft position statement was sent out to members for the second time) Dr Donnelly emailed the College’s general enquiry email address, requesting that an attached letter be forwarded to the Secretary of the Board, the Chair of the Board, and the Chief Executive Officer of the College. The letter asked the Board to convene an EGM to consider the following proposed resolution:
That the Royal Australasian College of Physicians may only adopt a Position Statement on euthanasia, assisted suicide, assisted dying, medical aid in dying or similar topic that is endorsed by a poll of its full membership.
[53]It included the names of 114 persons listed as signatories to the request.26
[54] Three days later, Dr Donnelly emailed the same general enquiry email address with an updated letter in materially identical terms but including 116 persons listed as
26 It actually included 115 names, but one was an accidental duplicate.
signatories.27 Mr Smith subsequently advised that a list of names was insufficient, but scanned signatures would be acceptable to the Board.
[55] On 6 May, Dr Donnelly sent the first tranche of 51 hard copy signed requests to the College.
[56] Ahead of the Board meeting scheduled for 12 May, the Board was updated on the Working Party’s progress. The Working Party advised (among other things) that during the phase of consultation on the draft position statement it had received 108 submissions expressing “a spectrum of views on the document and the proposed College position of critical neutrality”.
[57] The update also addressed the request by Dr Donnelly and others for an EGM. Describing it as a “petition”, the Working Party advised the Board:
The petition has since been received but is incomplete at this stage, in that it does not contain signatures. The College Governance Unit has advised that the group can put questions on this issue to the AGM, without the need to collect signatures or convene an additional General Meeting of Members. It also appears the group is effectively trying to direct the Board to take a certain course of action, which is beyond the remit of Members.
[58] The minutes of the 12 May Board meeting record that the Board understood the “views range[d] from those who were strongly opposed to the proposed position to those who were highly supportive of the statement”. A few days later, following an election process, the Board was reconstituted. One of the new Board members was Professor Paul Komesaroff, who was also a member of the Working Party.
[59] Later in May, the Working Party provided the entirety of the feedback from members on the draft position statement to the Board. The summary relevantly advised that:
(a)a total of 134 Fellows/College bodies had provided comments on the draft;
27 Again, the document actually had 117 names, but one was an accidental duplicate.
(b)62 Fellows/College bodies were comfortable with the “critical neutrality” position proposed in the draft;
(c)70 Fellows/College bodies had taken issue with the “critical neutrality” position, the vast majority of whom were opposed to it;
(d)two responses were unclear;
(e)over 190 pages of submissions had been received; and
(f)a handful of Fellows had submitted more than one (up to four) submissions/comments.
[60] Between 18 and 21 May, Dr Donnelly sent the College a second tranche of signed requests, comprising 50 letters (of which it appears six were repeats from the first tranche). A week later, Mr Smith confirmed receipt of these and advised that the matter would be referred to the Board.
[61] Dr Donnelly says—and I accept—that she then believed she had met the prerequisites for calling an EGM, namely that she had provided 100 signed requests. Nonetheless, a further four were subsequently received and she also sent those on to Mr Smith.
[62] The new Board was scheduled to meet on 1 June. Ahead of this meeting, a briefing paper was prepared by Mrs Linda Smith (the Chief Executive Officer of the RACP) and Mr Smith (the Secretary). Included in the briefing was a document entitled “Request to Requisition a General Meeting of Members – Assisted Dying” which confirmed the request for a meeting as complete and satisfactory, and referred it to the Board as required by the Constitution:28
The College has received a requisition for Directors to convene a general meeting of members to consider the following resolution: -
“That the Royal Australasian College of Physicians may only adopt a Position Statement on euthanasia, assisted suicide, assisted dying,
28 (Emphasis added).
medical aid in dying or similar topic that is endorsed by a poll of its full membership.”
The requisition has been submitted and complies with, sub-clause 5.2.2 of the College’s Constitution which states:29 -
“The Board must call a general meeting of the College as required under the Act or if the College receives a written request form from the lesser of: -
(a)At least 5% of members who are entitled to vote at the general meeting; or
(b)At least 100 members who are entitled to vote at the general meeting, and the written request: -
(c)States the resolutions to be proposed at the general meeting; and
(d)Is signed by all members making the request.
At least 100 members have signed the requisition and the requisition does clearly state the resolution to be put to the meeting of members.
[63] The document goes on to note that, based on the requirements of cl 5.2.3 of the Constitution:30
The fully signed requisition was received by the College on Thursday 24 May 2018 so if the Board determines to convene a general meeting at its meeting to be held on Friday 1 June 2018, it will comply with the requirements of 5.2.3(a) above.
[64]But then, it advised:31
The Board may decline to convene a general meeting of the members to consider this resolution on the basis that the resolution effectively directs the Board to take some action, which is beyond the powers of members to so direct as it is an operational matter within the Board’s range of responsibilities.
There is legal precedent for Boards to decline to convene general meetings in such circumstances, but if the Board is contemplating follow[ing] this route, then it is recommended that independent legal advice be sought.
29 The quotation here from the Constitution is not entirely accurate. In particular, the words “and the written request” are not included in (b). The signal point (which the rewording muddies) is that the requirements of (c) and (d) apply regardless of whether the written request complies with
(a)or (b).
30 Namely that the Board must call the general meeting within 21 days after the request is given to the College and that the meeting must be held within two calendar months after the request is given to the Board.
31 (Emphasis added).
Further the College’s Constitution at sub-clause 5.2.4 states the following: -
“If the Board does not call a general meeting that was requisitioned by members under clause 5.2.3 within 21 days after the request is given to the College, then members with more than 50% of the votes of all the members who made the request under clause 5.2.2 may call and arrange to hold a general meeting”.
Dr Sinead Donnelly organised the requisition. If the Board decides not to convene the requested general meeting then it is recommended that Dr Donnelly, on behalf of the requisitioners, be advised accordingly.
[65]The briefing ultimately recommends that the Board either:
i.Resolves to convene a general meeting of College Members as prescribed by clause 5.2.3 of the College’s Constitution; or
ii.Declines the Members’ request to convene a general meeting of members of the College, the consequences of which are contemplated under the terms of clause 5.2.4 of the College’s Constitution.
[66] Mr Smith did not attend the Board meeting on 1 June, although Mrs Smith did. The minutes relevantly record:32
5.8 Request to Requisition a General Meeting of Members
– Assisted Dying
It was noted that the Requisition was not signed by 100 members, so therefore is not compliant with the Constitution and that not all those who signed the requisition are financial Members of the College.
The Board agreed that it was undesirable to refuse the EGM on the technicality.
Agreed that polling Members on this topic had advantages and was consistent with the aim of greater engagement with the Membership.
The Board RESOLVED that Paul Komesaroff would continue to negotiate with Sinead Donnelly and the Working Party, with the aim of achieving agreement on future action.
[67] On 7 June, the Director of the CPAC (Mr Patrick Tobin) emailed Dr Laking and Professor Komesaroff suggesting a meeting to discuss further engagement with the Donnelly group. And later that same evening, Mr Tobin emailed Dr Donnelly advising her that Dr Laking and Professor Komesaroff would like to speak with her
32 (Emphases added).
about the request sent to the RACP. He asked whether she would be available for a telephone conference later the following week.
[68] Dr Donnelly responded to Mr Tobin on 11 June with a copy to Mr Smith (who was, at this time, still the Secretary for the Board). To Mr Smith, she said:
Michael
Could you please update me on arrangements for the General Meeting requested by members to consider the resolution …
I note that you confirmed you had received the necessary 100 signatures on 24 May, and that clause 5.2.3 of the constitution requires the Board to call the General Meeting within 21 days (that is 14 June), and the meeting held within two months of the request (that is, 24 July).
I have received several additional letters supporting the request, and I will send those to you today.
[69]And to Mr Tobin, she said:
Patrick
Thank you for passing on the request from George Laking and Paul Komesaroff to have a teleconference regarding “the request that you have sent to the College”. While I would be happy to talk with them regarding the issue of euthanasia and assisted suicide, I would be grateful if you could clarify the purpose of the call given that a constitutionally mandated process is underway, initiated by 100 College members and not just myself.
[70] On 13 June, Mr Tobin replied to Dr Donnelly and relevantly noted the following:
The aim of the proposed discussion will be to explore with you options, including the conduct of a poll or plebiscite that may lead to a better and more constructive result than an extraordinary general meeting and to address concerns that you have in relation to the present draft of the Working Party’s report.
[71] The next day, the Working Party met for the twelfth time. The minutes of this meeting record:33
For consideration
33 As originally drafted this section of the minutes read “What actions could the College take to avoid
an Extraordinary General Meeting?”.
What actions could the College take to resolve the issues that may make an Extraordinary General Meeting unnecessary?
[72] On 16 June, Dr Laking met with Dr Donnelly and some other members of the Donnelly group for a little over an hour. Following that meeting, he emailed Professor Komesaroff and Mr Tobin with an update. He described the meeting as “friendly”, and reported:
I said I was aware the Board hoped to avert an EGM, and was interested in finding out what it would take for them to be willing to forego an EGM.34 My thoughts:
(1)They remain intent on an EGM. It sounds like they are particularly motivated to meet with the Board. I think it is likely to require a direct approach from the Board / President to avert this constitutional process.
(2)They use the Euthanasia / Suicide language. There wasn’t time in our conversation to address our selection of the term medical assistance in dying.
(3)They have a high level of confidence in palliative care to be able to change patients’ minds about assisted dying.
(4)Their objection is grounded in anticipated injustice. It seems they are not necessarily opposed to the idea of medical assistance in dying in itself – I didn’t hear appeals to “sanctity of life” for example. Rather they consider it is not possible to legislate for this in a way that will prevent injustice, for example, due to coercion of the elderly, or general loss of trust in doctors leading to reduced access of medical services by Māori. Matthew [Jansen] described reduced uptake of medical services by Aboriginal people in the Northern Territory during the time of their right-to-die law. I have to say these objections resonate for me personally.
(5)For these reasons they wish the College to not take a neutral position.
(6)They also note our paper did not develop the idea that assistance in dying could be achieved by some other occupational group than doctors.
To summarise, I would advocate some direct contact from the Board / President if the College wants to avoid an EGM. Please could we also table this correspondence from me at the next meeting of the [Working Party].
34 This is somewhat at odds with Dr Donnelly’s evidence that in all conversations with Professor Komesaroff and the Working Party she “was very careful to make sure that [their] discussions were about the content of the draft Position Statement, and [she] did not discuss the request for a General meeting at all” and that she is “absolutely clear about that”. In the context of this judicial review (which proceeded in the usual way, without cross-examination) there is no basis on which I could properly disregard or discount a contemporaneous record such as Dr Laking’s email. The same comment applies (for example) to any conflict between Dr Donnelly’s evidence and other contemporaneous documentary accounts.
[73] The next day, Dr Laking introduced Dr Donnelly to Professor Komesaroff by email. Professor Komesaroff followed up a few hours later by suggesting a telephone call between himself and Dr Donnelly and providing his phone number. Dr Donnelly agreed, and they scheduled a call for two days later on 19 June.
[74] Following that call, Professor Komesaroff emailed Dr Laking and Mr Tobin a summary of his discussions with Dr Donnelly and Mr Jansen.35 He noted the conversation had taken an hour and expressed a “cautious feeling” that some progress had been made. He said:
1.I started by describing the philosophical standpoint of the Working Party in relation to the public debates about euthanasia and assisted dying, which is partly coloured by the passing of the Victorian legislat[ion] and by the recognition that within the College a wide range of views, attitudes, belief systems and ethical perspectives are represented.
2.I indicated that we saw this document more as a resource that could be drawn on by College members to assist themselves in making up their own minds, rather than as presuming to represent a single consensus view of the entire RACP membership.
3.I also talked about the EGM process and how it was unlikely to achieve a useful outcome but that if we wished to find out what the members think about the multiple issues related to end of life care and assisted dying we could do so more effectively by arranging a survey, which we would be happy to do.
4.I think it is fair to say that Matthew was more accommodating than [Dr Donnelly], who was very focused on broad statements about how it is wrong to kill patients and how euthanasia-related laws are completely anathema to any concept of medicine. Matthew made the more nuanced point that his concern was with defeating current attempts to New Zealand to pass assisted dying legislation and in doing so he wished to avoid any impression that the RACP either supported such legislation or was neutral with respect to it.
5.I stated that it was not the intention of the Working Party to convey the impression that we supported assisted dying or didn’t care which way the society went and that if this was how the word “neutrality” was interpreted then we hadn’t expressed ourselves clearly enough. [Dr Donnelly] was adamant that the document had multiple flaws (although this was the only one she mentioned) while Matthew indicated that if we could find a way of avoiding such an interpretation that might be a useful way forward.
35 Matthew Jansen is a member of the Donnelly group and is the man to whom Dr Laking referred at (4) of his 16 June email.
6.[Dr Donnelly] then stated that no-one really wants “another meeting”, with Matthew speaking in support of the same sentiment. We talked a little about what a survey would consist of but I didn’t get the impression that either of them had much enthusiasm for polling members on the multiple issues raised.
7.There was a little more discussion about what could be done. I suggested that we could put in a statement up-front that the document should not be interpreted as being in support of legislative change or as suggesting that such change would be of no consequence. I raised the possibility of talking with the Working Party about clarifying the language to make it clear that “neutrality” did not mean that we didn’t care which way the argument went. I also raised the possibility that we could dispense with the expression “Position Statement”. I gained the feeling that if the College’s “statement” were not able to be seen as providing support for the proposed law in New Zealand that might largely appease them (or at least, Matthew).
…
[75] On 20 June, Mr Tobin emailed the Working Party to report on the meeting, saying that it appeared “considerable progress has been made in avoiding the need for an EGM”. He went on to pose three questions for the Working Party:36
·The proposed suggestions outlined at Item 7 in [Professor Komesaroff’s] report below – namely “including a clarifying statement up-front that the document should not be interpreted as being in support of legislative change or as suggesting that such change would be of no consequence”; and changing the expression “Position Statement” to something less directive such as “Statement”?
·[Professor Komesaroff] has also asked the Working Party to consider: the possibility of some adjustment in the language around “neutrality” to avoid the sense of hypostatisation. We never intended “critical neutrality” as a “position” like “pro-euthanasia” or “anti- euthanasia”. We really meant it (I believe) as a descriptive term for a position that adopts a healthy scepticism in relation to extreme, dogmatic attitudes. Because of the sensitivities we could move from “critical neutrality” to “critically neutral with respect to…”
·In view of the response from [Dr Donnelly] and [Mr Jansen] and taking into account the discussion on the [Working Party’s] teleconference last week, should we continue with the proposal to develop and conduct a survey?
[76] On 22 June, Dr Donnelly emailed the Board Secretary, Mr Smith, about the request for an EGM. She began by acknowledging Mr Smith’s prior confirmation (on
36 (Emphasis in original).
28 May) that the request had been received by 100 members in accordance with cl 5.2.2 of the Constitution. She then:
(a)asked for confirmation that the Board had not made a decision on the EGM request in accordance with cl 5.2.3(a);
(b)referred to the consequences of a refusal to call a meeting under cl 5.2.4, saying that whether or not the requesters would call a meeting themselves was a decision for the requesters to make; and
(c)asked for confirmation of the relevant timeframes.
[77] Twenty minutes later, Dr Donnelly called the College and was advised that Mr Smith had left. She then forwarded her original email to the general RACP email address. The forwarded email said, “I understand from a phone call to [the] RACP today that Michael Smith no longer works at [the] RACP. Please deliver the below today to [the] RACP Board Secretary”.
[78] It seems, however, that the email was not referred to the (new) Secretary. There was no response from, or action taken by, the Board.
[79] On 24 June, five days after their initial telephone call, Professor Komesaroff emailed Dr Donnelly again saying that “extensive discussions” had occurred following their conversation and requesting a further telephone call. A call was scheduled for 26 June.
[80] On 26 June, the (then) Chief Executive Officer of the RACP (Mrs Smith) was removed from office.
[81] On 6 July, Dr Donnelly wrote to Dr Laking asking for a face-to-face meeting with the Working Party. She said:
… I would like to suggest that the best way forward would be to continue direct discussions between the Working Party and those who have raised concerns about the draft Policy Statement (and in particular those members who were so concerned as to request a General Meeting). Ideally that would
be a face to face meeting as the best way to engage with the issues respectfully and productively.
[82] Two days later, Dr Laking emailed Dr Donnelly a holding reply acknowledging receipt of her letter and indicating a further response would be, hopefully, provided the following day. He advised that he had passed her message onto the Working Party and the RACP, saying he would be free for a face-to-face meeting on 23 or 24 July.
[83] On 11 July, Dr Laking emailed Dr Donnelly again, suggesting that because the members of the Working Group were scattered across New Zealand and Australia, and one of them was travelling overseas, the best way forward would be a face-to-face meeting in Wellington. He said he could be there in person, along with a senior RACP member and possibly a further Working Party member. He suggested some suitable dates.
[84] Dr Donnelly replied on 16 July, suggesting a meeting in either Sydney or Melbourne. She indicated the willingness of her group to travel if the meeting could be arranged for a weekend.
[85] Meanwhile, a Board meeting was scheduled for 20 July. The Working Party prepared a paper entitled “Brief to the Board – Update on Request for an Extraordinary General Meeting (EGM)”. The paper begins by noting that the Working Party had reached a stage where “with relatively minor changes, it [was] close to agreeing on a document that [could] be sent to the CPAC to seek authorisation to consult selected external organisations” after which it could finalise the draft and send it through to the CPAC and the Board for final approval.
[86] Turning to the call for an EGM, the paper referred to the Professor Komesaroff’s and Dr Laking’s engagement with the Donnelly group, recording that:
Discussions have included:
·The reasons for the group’s concerns, and the potential impact of the College’s position in the context of proposed legislative change in New Zealand.
·Their request for an EGM and advice regarding whether their proposed motion is able to be binding on the board, if passed.
·Other potential options for resolution, including clarifying the intent of the College’s document by making a number of proposed changes, including:
oNot calling it a ‘position’
oExplicitly stating that the College does not take a position either for or against legislation
oClarifying the term ‘critical neutrality’
[87]The briefing paper continued:
On 6 July 2018 Dr Laking received a letter from Dr Donnelly proposing to continue discussions between her group and the Working Party, ideally via a face to face meeting.
At the time of writing, the College governance area has advised that there are 95 valid signatories (that is non-duplicates and financial members) to the request to call a general meeting.
[88]The subsequent Board minutes record:
The Board noted the updates and further conversations that Professor Paul Komesaroff had led with the requisition group and attempts to meet the concerns raised in the College’s position of “critical neutrality” in regard to physician assisted death.
The Board previously agreed that Professor Komesaroff in conjunction with the Chair of the Euthanasia and Physician Assisted Death Working Party to engage in dialogue with a view to reaching a mutually acceptable outcome.
Professor Komesaroff is hopeful that the requisition group can see that an EGM would not serve their course, discussions are heading in the right direction.
[89] Two days later on 22 July, Professor Komesaroff emailed Dr Donnelly and Mr Jansen saying:
… I understand that plans are being made for a face to face meeting to continue our discussion about the RACP statement. I am looking forward to the ongoing conversation. However, because we are under pressure from the board to demonstrate an outcome from the extensive work we have put in to this point I would appreciate your responses to a suggestion I have put forward to allow the process to keep moving.
As you and I have discussed, and as the Working Party has agreed, we recognise that you are anxious to avoid the impression that the RACP statement provides partisan support for the proposed legislative changes regarding assisted dying in New Zealand. I assured you that it was not the intention of the Working Party to create such an impression and that we would
make sure that this was clear in the document itself. In addition, we have discussed dropping the word “Position” from the title of the document and clarifying that “critical neutrality” does not imply a lack of concern for or commitment to certain outcomes, but rather a critical stance towards specified arguments put forward by all parties in the discussion. It was my impression that both of you were favourably disposed towards this approach and we have taken steps towards implementing these clarifications in the document itself.
It is our view at this point that, in response to the concern by the board that the outcome of the working party’s deliberations be made available to our members, we should now proceed to finalise the document and issue it as a statement. This would not in any way preclude further modification or revisions as the conversation continued to develop. Indeed, we see the report as a living document that should be subject to ongoing review and changes as circumstances require and as the facts, experience and opinions evolve.
[90] He ended by asking whether the Donnelly group would have any problems with such an approach, emphasising that he was anxious to ensure that “all individuals and groups active in this space feel that they have been adequately listened to and respected”.
[91] Dr Donnelly replied three days later, agreeing that it was important that the conversation continued and expressing surprise that the Board was putting pressure on the Working Group to arrive at an outcome. She reiterated that her group did not consider that its views were yet properly represented in the draft, saying “[w]e believe that we should fix that first, rather than spend extra time, money and effort correcting it subsequently.” She said she was still waiting to hear back about a time and place for a face-to-face meeting.
[92] At the end of August, the interim Chief Executive Officer of the College emailed Dr Donnelly. After summarising the prior history of engagement and the face- to-face meeting that was (by then) proposed for 16 September, she expressed reservations about the meeting including either all of the 104 members of the Donnelly group (to whom invitations had apparently been extended) or the entire Working Party. She said:
I have strong concerns that this may result in a meeting that is quite different in character than that which had been initially envisaged and if it proceeds will require far more preparation in terms of logistics and management than is possible with less than a week’s notice.
I would therefore ask that in order for the meeting on 16 September to proceed, the number of representatives from your group be restricted to the same
number as we expect to attend from the [Working Party] (at this stage 3 or 4 face to face and an additional 3 by video/teleconference). If this request cannot be accommodated, we will need to reschedule this meeting. Prior to agreeing a new date, there will need to be an agreement as to the purpose of the meeting, its agenda, number of invitees and arrangements for chairing and managing the meeting – particularly if a large number of people are likely to attend. If the meeting is re-scheduled, it may also not be possible for the [Working Party] to take into account the feedback received from your group as it moves to finalise the statement.
[93] In early September, a briefing paper was provided to the Working Party by the General Manager of CPAC ahead of the scheduled meeting with the Donnelly group. The paper begins by identifying the key issues likely to be raised:
·Consultation and proportion of responses for or against the proposed statement
·Proposed survey of members
·Purpose of statement and its relationship to proposed legislation to introduce some form of [medical assistance in dying]
·‘critical neutrality’
·‘[medical assistance in dying]’ terminology
·Next steps and any final changes to statement
·The [Working Party’s] final recommendation to [the] Board
[94]As to the status of the EGM request, the briefing paper noted:
P&A understands that at this time, 95 valid signatures have been received, short of the 100 signatures needed. However, it is possible that the group will produce the required number of signatures at some time following this meeting.
Advice provided by RACP Governance on the requisition indicated that the proposed motion may not be valid as the group would be effectively trying to direct the Board to take a certain course of action, which is beyond the remit of members: …
[95]It also noted a new issue that had arisen:
Drs Quinlan and Obeid have written to the President stating their belief that Professor Komesaroff has a conflict of interest due to his membership of the [Working Party] and election to the Board, and that he should not be involved in any discussion, decision or action by the Board on this matter. The President has responded seeking further clarification of the nature of the
conflict of interest that they believe exists, with reference to the RACP’s Conflicts of Interest policy.
[96] The briefing paper also attached the newly completed Woolcott report on consultation and engagement. As well as delivering three face-to-face deliberative forums and an online forum, Woolcott had analysed and summarised the submissions received on the discussion paper.
[97] On 16 September, members of the Working Party met with the Donnelly group in Sydney.
[98] In response to a number of questions posed by a member of Dr Donnelly’s group shortly after the meeting, Dr Laking advised that:
(a)an updated draft position statement had been provided to the CPAC ahead of the Friday 21 September deadline and that the CPAC intended on providing the papers to the Board that week;
(b)there were no minutes of the 16 September meeting but that following the meeting changes had been made to the draft position statement (the principal of which he summarised);
(c)control of the process had moved from the Working Party to the CPAC and the Board, and that if and when the Board had approved the position statement he expected that members would be provided with a copy.
[99] At some point (it is not clear to me whether it was before, during or after the 16 September meeting) Dr Obeid provided the College with clarification of his concerns about Professor Komesaroff’s perceived conflict of interest. On 20 September, Associate Professor Mark Lane (President of the College) replied, saying:
This situation commonly arises across the College when members of committees are also members of working parties. The usual practice, consistent with the College’s policy in relation to conflicts of interest (COI) is that members will declare their role in developing the output from the working party and the associated potential conflict of interest when it comes to the lead committee. The lead committee will consider the COI and how it should best be handled. The options may include that the member may be excluded,
included for discussion, or included and entitled to vote. That decision is made on a case by case basis.
I can assure you that the Board will adopt the same process in this situation.
[100] Also on 20 September, the CPAC approved the final position statement and publication of the Woolcott report. Five members voted in favour and one abstained. The abstaining member is recorded as expressing the following concerns:
The document trail suggests there remain concerns that pall[iative] care, geriatrics have not had their position statements as well acknowledged as they would like. So deeper consultation and transparency may be required on such an important issue for physicians. I am not sure why we are in any hurry on this and think with a divided membership perhaps a delay for this consultation is appropriate. The idea of an EGM from the Donnelly group suggests the membership are worse than non happy as this is a significant step.
[101]And as for Professor Komesaroff’s involvement, she said:
… I think there is a [conflict of interest] that needs to be transparent, unless I have missed something? Specifically is it normal for a Board member to still be running the [Working Party], to be engaging with a group of dissenters and seemingly mediating to the [Working Party’s] perspective. Even if it is normal behaviour, is it appropriate? And the final sign off is also the Board!
I think the Board and [Working Party] membership and processes should be separate. Maybe the [Working Party] can work with CPAC and once we have a final position then this is signed off (or not) by the Board.
[102]The CPAC’s response to these concerns was as follows:
On the question of acknowledgement of the Geriatric Medicine and Palliative Medicine position statements, this has been addressed by referencing the Geriatric Medicine position statement (the ANZSPM position statement had already been previously referenced and the original concern expressed by the Donnelly group had been that one was referenced but not the other). These position statements are cited on p. 3 of the current draft. The manner in which the Specialty Societies consulted with their own members on the draft RACP statement was determined by them, though all RACP members should have received a direct email from the College seeking their views.
On the issue of potential conflict of interest, this will be managed by the Board in accordance with the RACP’s Conflicts of Interest Policy.
[103] Following this meeting, Mr Tobin prepared a briefing paper for the Board in which he recommended (among other things) approving the draft statement for publication as “an RACP document, noting that this cross-College statement supersedes the unpublished RACP NZ position statement” (which was attached to the
briefing). He also advised that in considering the recommendation the Board should have regard to the point raised about Professor Komesaroff’s conflict of interest.
[104] After summarising the background to the College’s engagement on the issue, under the heading “Risk Assessment” the briefing paper noted:
The issues are complex and contentious both amongst the membership and the wider community. It is likely that some members of the RACP will strongly oppose the statement and there may be public criticism and/or further attempts to requisition an EGM.
However, given polarised views within the RACP it would be impossible to achieve total consensus or satisfaction with the final statement. A multiyear process of development and consultation has been undertaken, and for the RACP to be unable to complete the statement may also impact reputation.
The WP comprises members with expertise in palliative medicine, geriatric medicine, rehabilitation medicine, neurology and ethics, and encompasses those with differing moral and ethical viewpoints. The WP has developed the statement having considered a large volume of feedback received from College bodies, Fellows and Trainees following its extensive consultation across the membership throughout 2017 and has made further changes to address recent feedback from the petition group.
[105] Next, it summarised the consultation process, including the Woolcott report, and recorded the relative positions taken in response to the draft position statement and, in particular, the proposed position of critical neutrality.37 Mr Tobin then noted some of the common themes among the submitters. He said:
The Board should note that the submissions that have been received are from those who have self-selected to respond and would not necessarily be representative of the views of the membership that might be obtained, for example, from a random sample of a statistically significant number of College Members. It does not include the views expressed at the multiple face to face meetings and other discussions that have occurred over a two-year period.
[106] The paper then referred specifically to Dr Donnelly’s petition, Professor Komesaroff’s engagement with the Donnelly group, and the further changes made to the position statement as a result. The key changes were summarised thus:
·Calling the document, a ‘statement’ rather than position statement
·Clarifying that it is not intended to support any changes to legislation
37 As set out at [59] above.
…
·substituting the term ‘medical assistance in dying’ with ‘voluntary assisted dying’
·clarifying in the opening part of the statement that ‘critical neutrality’ is an approach rather than a position as such
·referencing the ANZSGM position statement
·rewording to clarify that conscientious objection is not abandonment of patients.
[107] Reference was then made to the request for an extension of the consultation period made by the Donnelly group, and Dr Laking’s response.38
[108] A separate report of the 16 September meeting with the Donnelly group was also attached to the briefing paper. That paper recorded in more detail the group’s concerns, as follows:
… the following were the key concerns that the Donnelly group had with the statement:
·That the use of the term ‘medical assistance in dying’ may be potentially misleading because it can be conflated with what palliative medicine physicians do. Moreover that it would be preferable to use more commonly accepted terms in the literature and the press such as ‘voluntary assisted dying’, ‘physician assisted suicide’ or ‘euthanasia’.
·That the term ‘critical neutrality’ as highlighted in the opening part of the Statement would be prone to significant misunderstanding particularly in the media because the term ‘neutrality’ would be emphasised over the qualification of ‘critical’ in any media reporting. Moreover that ‘neutrality’ would be seen as de facto support for legislative change to allow voluntary assisted dying in the general public and that ‘neutrality’ would also potentially create the misleading impression that the College was dispassionate or did not care about the issues around legalisation of voluntary assisted dying.
·That the statement could be interpreted as implying that conscientious objectors are abandoning patients.
·That the position statements of the ANZSGM, ANZSPM and the unpublished statement of RACP New Zealand opposing voluntary assisted dying were not given sufficient acknowledgement in the draft Statement.
38 See [98] above.
Other concerns that were raised by the [Donnelly] group revolved around whether it would be possible to make more explicit that the intention of the Statement is not to support legislative change to legalise voluntary assisted dying and whether it would be possible to further extend the period for consultation and feedback so that all concerns can be comprehensively addressed.
[109] The report also records the Working Party’s more detailed responses to these concerns:
·The [Working Party] had intentionally avoided using a number of terms in the document including ‘euthanasia’ and ‘physician assisted suicide’ because they are loaded terms which can be imprecise and misleading.
·The [Working Party] does not see ‘critical neutrality’ as a ‘position’ in itself but an approach to the issues associated with medical assistance in dying. The wording has been changed to better reflect this.
·In addition [and this relates to another concern of the Donnelly group] the [Working Party] agreed that it would consider whether it was possible to make more explicit in the document that it should not be read as support for legislative change in favour of legalised assisted dying (though there already is a significant caveat to that effect).
·That the intention was not to imply that conscientious objectors are abandoning patients, and the document would be reviewed to ensure this [was] clear.
·The [Working Party] also agreed to reconsider whether the position statements of the ANZSGM and ANZSPM can be better acknowledged (noting that the position of the ANZSPM is already mentioned in the draft statement, and that the RACP NZ statement will be superseded by any approved cross-College statement).
[110]On the topic of any further extension of the consultation period:
… the [Working Party] considered that there had already been extensive consultation, that [the] CPAC and the Board expected them to complete their work within the extended timeframe set, and that the issues raised by the Donnelly group could be addressed without further extending the life of the [Working Party].
[111] On 5 October, the Board met. The minutes of that meeting record that Professor Komesaroff was invited to speak to the Board about his involvement in the Working Group and his engagement with the Donnelly group “to work through their concerns as an alternative to their proposed Extraordinary General Meeting (EGM)”. Although the minutes do not record any discussion of the issue, the President of the College, Associate Professor Lane, deposed that none of the directors considered that
Professor Komesaroff had a conflict of interest and all were of the view that he should be permitted to vote.
[112]The Board then resolved to:
1.Approve the draft statement on voluntary assisted dying for publication as an RACP document;
2.Approve publication of the Woolcott Consultation Report; and
3.Note that a release plan will be developed and implemented by the Policy and Advocacy Unit and Marketing and Communications Unit, with a focus on promoting the Statement in a way that minimises the risk of it being used to support legislative change or to create disharmony amongst the Membership.
[113] On 1 November, Ms Casey QC sent a letter to the RACP (addressed to the interim Chief Executive Officer) regarding publication of the statement, advising that she represented Dr Donnelly and noting that her instructions were as follows:
I am instructed that on 5 October 2018 the RACP Board of Directors purported to “endorse” a statement prepared by a Working Party, and that it is intended the statement will be published on the RACP website on Friday 2 November 2018. Endorsement and publication by the RACP in these circumstances would be in contravention of the Board’s obligations under the constitution. It would also be a deliberate and serious contravention of the Board’s duties to its members, including the 103 signatories who have the right and legitimate expectation for this meeting to be held to determine the Board’s powers to issue such a statement.
Dr Donnelly requests that you respond with an immediate commitment not to publish any statement on euthanasia, assisted suicide, assisted dying, medical aid in dying or similar topic until the matter of the General Meeting request has been properly resolved, so that the membership agree the conditions upon which the Board can purport to act on behalf of the RACP on this issue. The commitment is required no later than 12 midday Friday 2 November 2018.
Further, it is understood that a member of the Working Party that prepared the statement is a Director of the Board of the RACP. I seek your assurance that the Director was not involved in any way in the discussion or decision regarding the statement at the Board’s meeting on 5 October 2018.
[114] On 5 November at 6:05 pm, Mr Findley replied to Ms Casey advising that the RACP believed the request was “defective” because:
·The requisition does not meet the required number of 100 members who are entitled to vote at the general meeting of the College. In particular, there is a doubling up of at least 6 members in the list and
one individual has moneys owing to the College for more than 12 months.
·Even if the requisite numbers are obtained, the purported resolution is not within the power of the member body as it goes directly to the management of the company which is delegated by the constitution to the board.
[115] He concluded his email by advising that the “College intends to issue its position statement on assisted dying today”. As it turns out, the RACP published its statement two hours earlier at 4:00 pm by email, meaning that by the time Mr Findley replied to Ms Casey the statement had already been published.
[116] This was the first time Dr Donnelly—or any requesting member—was advised that the Board considered their request defective in any way.
[117] The following day on 6 November, the RACP sent the final statement to the Justice Select Committee (who were charged with considering David Seymour’s End of Life Choice Bill).
The Final RACP Statement
[118]The final RACP Statement (as published) states:
The RACP respects and supports all its members and does not believe it is appropriate or possible to enforce a single view on a matter where individual conscience is important. The RACP recognises that legislation of voluntary assisted dying is for governments to decide, having regard to the will of the community, to research, and to the views of medical and health practitioners.
Legislative change related to voluntary assisted dying will affect individual members in different ways. Different clinical settings require ethical and clinical considerations to be made carefully, deliberately and systematically. Our members are not unanimous in their support or opposition for legislative change. The existence of divergent views constrains the RACP from developing a single position on the legalisation of voluntary assisted dying.
The RACP takes the following unified positions if and where voluntary assisted dying is legalised:
·Every patient should have access to timely, equitable, good quality end-of-life care, with access to specialist palliative care where appropriate. These services must not be devalued.
·On the specific issue of a competent adult in the last stages of incurable illness requesting voluntary assistance to die, the RACP
supports a clinical approach of critical neutrality to encourage reflective dialogue.
·Although physicians should not be forced to act outside their values and beliefs, they should also not disengage from patients holding different values and beliefs, without ensuring arrangements for ongoing care are in place.
·Patients seeking voluntary dying should be made aware of the benefits of palliative care. Referral to specialist palliative care should be strongly recommended but cannot be made mandatory. Voluntary assisted dying must not be seen as part of palliative care.
·Legitimate concerns exist around protection of vulnerable individuals or groups. Government, society and physicians must ensure that specific groups have equitable access to palliative and end-of-life care, and that relationships of trust are not jeopardised. Specific regard must be given to cultural and Indigenous experience.
·All physicians must affirm the value of all patients’ lives, exploring reasons for requests for voluntary assisted dying, while remaining alert to any signs of coercion and reduced capacity.
·Assessments must not follow a “tick box” approach. They must be underpinned by adequate physician-patient relationships, including appropriate training, skill and experience.
·Support, counselling and conflict mediation services must be available for individuals, families and health professionals involved.
·There must be rigorous documentation and data collection to enable review of any scheme and to assess changes in practice and the impacts on health professionals, patients and families.
This statement should not be taken as support for legislative change. The RACP will continue to highlight concerns about legislative proposals, drawing on both clinical experience and the ethical perspectives of our members. The RACP will continue to advocate for patient and physician well-being in order to support our members and contribute our expertise as medical specialists who care for dying patients.
THE PLAINTIFFS’ CLAIM
[119] In short, the plaintiffs seek judicial review of the Board’s decisions to publish the position statement without having first called the general meeting in accordance with cl 5.2.2 of the Constitution. They say these decisions:
(a)were outside the powers of the Board;
(b)contravened the Board’s obligations under the Constitution;
(c)failed to meet the Board’s obligations of fairness, transparency and accountability;
(d)breached the legitimate expectation of the requesting members that no statement would be issued until the members had voted on the proposed resolution (to decide whether the Board’s proposed statement needed to be put to a poll of the members before adoption as the published position of the RACP);
(e)were undertaken for an improper purpose of advancing the political objectives of individual Board members;
(f)deliberately and knowingly overrode the constitutional rights and legitimate concerns of the members who had requested that the meeting be called; and
(g)were accordingly improper and unlawful.
[120]They ask the Court to:
(a)make an order setting aside the decisions of the Board;
(b)direct that the Board:
(i)withdraw the position statement from its website and post a message that the statement has been withdrawn;
(ii)advise members, through appropriate channels that are at least as extensive as the channels by which members were advised of the statement, that the statement has been withdrawn;
(iii)advise all third parties to whom the RACP forwarded its statement that the statement has been withdrawn;
(iv)convene an EGM to consider the resolution proposed by the Donnelly group; and
(c)award costs.
[121] I record at this point that there was no pleading that clearly related to Professor Komesaroff’s alleged conflict of interest, and no suggestion that his vote was somehow determinative. Although I acknowledge Ms Casey’s submission that Associate Professor Lane failed to act in accordance with his undertaking that the College’s conflict of interest policy would be applied, I do not propose to consider the matter further.
Discussion
[122] Before turning to consider each pleaded aspect of the application for review it seems useful to note that the claim focuses on two intertwined “decisions”, namely the failure to call an EGM and the Board’s subsequent decision to issue the RACP Statement (the Statement). The plaintiffs’ central proposition must, I think, be that the second decision was tainted by the first failure (or (non)-decision).
[123] In my view, however, the linkage is not necessarily so clear-cut. More particularly, it is not obvious to me how the Board’s failure to call an EGM could render the release and publication of the Statement unlawful, particularly in light of the company law principles discussed at the end of this judgment. On the other hand, I accept that—at least in theory—the plaintiffs might be able to challenge the release of the Statement on legitimate expectation grounds. It is necessary to bear those distinctions in mind in the following discussion.
[124]I address each of the plaintiffs’ pleadings in order.
Illegality or breach of the Constitution
[125] The principal submission under this cause of action is about the Board’s alleged non-compliance with cl 5.2.2 of the Constitution. Although it was also pleaded that the Constitution does not authorise the Board to “publicly commit the RACP to a
neutral position on an issue that is declared by the World Medical Association and other relevant bodies to be unethical” that argument was not developed (as a legal matter) before me. And as I have noted above,39 it appears that even the World Medical Association has recently stepped back from the use of the word “unethical” in relation to the involvement of medical practitioners in euthanasia. I do not propose to deal with that matter further.
[126]For convenience, I set out the relevant parts of cl 5.2 of the Constitution again:
5.2.2 The Board must call a general meeting of the College … if the College receives a written request from the lesser of:
(a)at least 5% of members who are entitled to vote at the general meeting; or
(b)at least 100 members who are entitled to vote at the general meeting.
and the written request:
(c)states the resolutions to be proposed at the general meeting; and
(d)is signed by all the members making the request.
5.2.3If members requisition a general meeting under clause 5.2.2,
(a)the Board must call the general meeting within 21 days after the request is given to the College;
(b)the meeting must be held within two (2) calendar months after the request is given to the Board.
5.2.4 If the Board does not call a general meeting that was requisitioned by members under clause 5.2.3 within 21 days after the request is given to the College, then members with more than 50% of the votes of all the members who made the request under clause 5.2.2 may call and arrange to hold a general meeting.
[127] I record at the outset that counsel for the College did not, ultimately, seek to contend that the prerequisites for calling an EGM stipulated in cl 5.2.2 of the Constitution were not met because an insufficient number of written requests were received.40 And in light of what Mr Friar accepted was the poor communication from
39 Above n 4.
40 The exact number of requests sent in remains rather unclear to me. It was certainly very close to, and possibly even over, 100.
the Board on this issue, it was right not to do so. Accordingly, the analysis below is predicated on the plaintiffs having met the specific cl 5.2.2 threshold.
[128] While subcls 5.2.2 and 5.2.3 appear to be in mandatory terms (“the Board must”), the alternative route offered by subcl 5.2.4 plainly contemplates that the Board may refuse (or fail) to call a general meeting upon receipt of a compliant request. It is, therefore, difficult to conclude that the Board’s failure here to call a general meeting was unlawful, at least in any meaningful sense.
[129] The most that can be said under this ground is that the Board should—as a matter of good practice—have made a timely decision (or indeed any decision) on Dr Donnelly’s request and advised her of it. This was, of course, a specific recommendation made to the Board in May 2018.41 Had that occurred, Dr Donnelly and her supporters would then have been properly placed to make their own decision about whether to call a general meeting themselves. But, equally, even in the absence of a decision by the Board, the Donnelly group would have been justified in standing on their cl 5.2.4 rights upon the expiry of the 21-day period, which would have been by mid-June 2018 at the latest.
[130] On balance, I am unable to conclude that the Board’s failure to call an EGM was unlawful or in breach of the Constitution. But even if it was, it does not follow that the subsequent decision to publish the Statement (without first calling a meeting) was outside the powers of the Board or contravened the Board’s obligations under the Constitution. As noted earlier, the plaintiffs’ challenge to that decision is more logically addressed under the legitimate expectation cause of action.
Failure to meet the Board’s obligations of fairness, transparency and accountability
[131] The precise content of these pleaded obligations is not clear to me. Nor are the ways in which the Board is said to have breached those obligations. I have already acknowledged that the Board’s practice around the EGM issue could have been better—as could other aspects of its communications with the Donnelly group,
41 See [64] above.
particularly at the earlier stage.42 But overall, the relevant factual narrative (which I summarise under the next heading, below) does not disclose any potentially vitiating lack of fairness, transparency or accountability.
Breach of legitimate expectation
[132] Neither counsel addressed me in any detail (or, really, at all) on this aspect of the pleading. But, for the reasons already given, this is the only pleaded cause of action capable of challenging the Board’s decision to issue the Statement—which is, of course, the plaintiffs’ fundamental concern.
[133] I take as my starting point the useful dicta of Randerson J (speaking for the Court of Appeal) in Comptroller of Customs v Terminals (NZ) Ltd:43
[125] Where legitimate expectation is raised, the inquiry generally has three steps. The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This is a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.
[126] The second is to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate. This involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.
[127] The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established.
[134] Here, the pleaded expectation is that no statement would be issued until the members had voted on Dr Donnelly’s proposed resolution. Implicit in that is the underlying expectation that an EGM would be convened following her request or, possibly, that she would be advised if the Board decided not to do so.
[135] I am prepared to proceed on the basis that there is some foundation that might legitimately give rise to the underlying expectation. That foundation might include:
(a)the terms of subcls 5.2.3 and 5.2.4;
42 By which I principally mean the failure to respond to her email of 22 June.
43 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]– [127].
(b)the interactions between Dr Donnelly and the College which led her to believe at an early stage that the constitutional prerequisites for calling an EGM had been met; and
(c)the failure to expressly disabuse her of that belief.
[136] Against that is the point that, from mid-June onwards, it was clear that the timeframes in subcl 5.2.3 had not been met and, so, that the requesters’ rights under cl 5.2.4 had been triggered. But the Board’s failure to respond to Dr Donnelly’s express inquiry about that would also need to be taken into account.
[137] Regardless of whether there was a proper basis for any legitimate expectation that an EGM would be called, the plaintiffs face a further problem. There is no pleaded representation, promise or practice on which the plaintiffs say they founded their ultimate (Statement) expectation. Nor does my review of the evidence disclose one. Rather, the documentary evidence44 discloses that:
(a)Dr Donnelly was advised by Mr Tobin on 13 June 2018 that the CPAC/the Board wanted to consider options other than an EGM “that may lead to a better and more constructive result”.
(b)The Board’s wish to avoid an EGM was reiterated by Dr Laking in his meeting with Dr Donnelly and others on 16 June (in response to which Dr Donnelly confirmed her group’s countervailing desire that an EGM take place).
(c)On 19 June Professor Komesaroff again advised Dr Donnelly of his view that the EGM process was unlikely to be fruitful (proposing a survey instead).
(d)During the same conversation Dr Donnelly emphasised what she saw as flaws in the draft position statement, leading to discussions about how it might be changed.
44 As to my preference for which, see above n 34.
(e)Dr Donnelly received no response to her email of 22 June asking for confirmation that the Board had not made a decision on the EGM request and of the relevant timeframes in the constitution.
(f)On 6 July Dr Donnelly suggested to Dr Laking and others that “the best way forward would be to continue direct discussions between the Working Party and those who have raised concerns about the draft Policy Statement (and in particular those members who were so concerned as to request a General meeting)”. Such a meeting was subsequently arranged.
(g)On 22 July Professor Komesaroff advised Dr Donnelly that the Working Party was under pressure to achieve an outcome and that “[i]t is our view at this point that … we should now proceed to finalise the document and issue it as a statement”, although changes could continue to be made to it after that point.
(h)In response to Professor Komesaroff asking whether the Donnelly Group would have any problem with this approach, Dr Donnelly expressed the view that the Position Statement should be fixed first and reiterated her request for a face-to-face meeting.
(i)On 29 August the interim Chief Executive Officer of the College reiterated to Dr Donnelly that the Working Party was moving “to finalise the statement”.
(j)The requested face-to-face meeting between the Working Party and the Donnelly group occurred on 16 September and a number of specific concerns with the draft Position Statement were raised and responded to.
(k)On 26 September Dr Laking expressly advised a member of the Donnelly group that:
(i)following the face to face meeting changes had been made to the draft position statement;
(ii)an updated draft position statement had been provided to the CPAC ahead of the Friday 21 September deadline and that the CPAC intended on providing the papers to the Board that week; and
(iii)control of the process had moved from the Working Party to the CPAC and the Board, and that if and when the Board had approved the position statement he expected that members would be provided with a copy.
[138] So despite the fact that Dr Donnelly was never expressly advised that the Board did not intend to call an EGM, I consider that the above matters—whether viewed individually or collectively—are incapable of giving rise to a legitimate expectation of the sort pleaded. While the failure to respond to Dr Donnelly’s earlier inquiry as to timeframes is regrettable, her group then participated in a consultative process that was signalled as an alternative to an EGM. By late August it was clear that the position statement was going to be finalised; by mid-September it was clear that it would soon be referred to the Board for approval. And it was implicit in the notion of Board approval that publication was likely to follow.
[139] For these reasons, I consider that the legitimate expectation claim falls at the first of the steps articulated by Randerson J in the Terminals decision. This cause of action fails, accordingly.
Improper purpose
[140] Counsel did not address this aspect of the claim and nor, in my view, is there an evidential basis for it. I do not intend to deal with it further.
Deliberate and knowing overriding of the constitutional rights and legitimate concerns of the requesting members
[141] To the extent this aspect of the pleading alleges that the Board’s actions (in not calling a meeting) were in breach of the Constitution, I have rejected that allegation above.
[142] And to the extent it is concerned with the deliberate publication of a statement with which the Board knew some College members (including the plaintiffs) did not agree, I am unable to discern a relevant cause of action. There was no specific allegation of inadequate consultation and, indeed, the narrative I have set out above indicates that the consultation process was extensive. And importantly, there was specific and intensive consultation with the Donnelly group which led to not insignificant changes to the Statement.
[143]This cause of action also fails.
Discretion
[144] For the reasons given above, I consider that the plaintiffs have failed to establish any reviewable error on the part of the College or the Board. It is, nonetheless, important to record that even if I had reached a different conclusion, I would not have exercised my discretion to grant relief, for two reasons.
[145] First, although I do not accept Mr Friar’s submission that the plaintiffs’ “failure” to, themselves, call an EGM means that the Board’s decision is not amenable to review at all, the availability of private law remedies is certainly relevant to the exercise of the Court’s discretion. While I have accepted that there was a lack of clarity in the Board’s communications with Dr Donnelly about whether the Board had decided not to call an EGM itself (or whether it was simply deferring it), it remained open to the requesters at any time to exercise (or to attempt to exercise) their rights under cl 5.2.4. The fact that they did not do so is the first thing that would militate against the grant of relief here.
[146] Secondly, and more significantly, I agree with the tentative view expressed internally to the Board and, later, by Mr Friar in his submissions to me that the remit the Donnelly group wished to put to the EGM was beyond the power of the members. As he said, there are twin principles of company law which invite that conclusion:
(a)shareholders or members at a general meeting cannot interfere in the exercise of powers which are vested in the Board; and
(b)if the sole object of a shareholder/member requisition cannot be lawfully effected at a general meeting the Board is entitled to decline to act on the requisition.
[147]For completeness, I elaborate below.
The law
[148] The principles to which Mr Friar referred can be traced back to English cases the earliest of which is well over 100 years old, including most notably:
(a)Isle of Wight Railway Co v Tahourdin;45
(b)Automatic Self Cleansing Filter Syndicate v Cuninghame;46
(c)Gramophone & Typewriter Ltd v Stanley;47
(d)John Shaw and Sons (Salford) Ltd v Shaw;48
[149] Those principles also form part of the law in Australia and New Zealand and have been applied by the courts of both countries. Mr Friar referred me in particular to the following.
45 Isle of Wight Railway Co v Tahourdin (1883) 25 Ch D 320 (Ch).
46 Automatic Self Cleansing Filter Syndicate v Cuninghame [1906] 2 Ch 34 (CA).
47 Gramophone & Typewriter Ltd v Stanley [1908] 2 KB 89 (CA).
48 John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 113 at 134 (CA).
[150] In National Roads and Motorists’ Association v Parker the articles of association of the National Roads and Motorists’ Association (NRMA) gave its board of directors (called the Council) control and management of the NRMA’s business and affairs.49 The articles also set out the processes for election of members of the Council. Article 16 provided:
The secretary shall convene an extraordinary general meeting on the receipt of a requisition signed by at least 100 members or 10 per cent of the members of the Association, whichever is the lesser. …
[151] Mr Parker had requisitioned an EGM to consider resolutions directing the Board to alter the process for electing Council members. The request was signed by the required number of members. Mr Parker subsequently sought to introduce additional resolutions which would have informed the Council of the meeting’s opinion as to those processes.
[152] McLelland J ruled that the resolution purported to exercise a power that was not vested in the members and so was not a resolution that could be passed by the members at a general meeting. More specifically, he said:
It is clear that, in general, a power vested by the constitution of a company exclusively in the directors cannot be effectively exercised, nor can its exercise by the directors be effectively controlled or interfered with, by a resolution of members in a general meeting, and that a power of control and management of the business and affairs of a company vest in directors in terms similar to those … in the present case is within this principle …
It follows from this that the proposed resolution set out in the requisitions, which is in the form of directions to the Council in relation to matters in respect of which neither the Companies (New South Wales) Code nor the constitution of the plaintiff confer any authority on a general meeting, is not a resolution which can be effectively passed by the members in general meeting
…
[153]As a result, the Council was not required to act on the requisition:50
It has been held (and this was not challenged on behalf of the respondent) that if one object of a requisition by members of a company for an extraordinary general meeting is an object which cannot be lawfully effectuated at such a meeting, the directors are entitled to omit that object from the notice of the meeting: …
49 National Roads and Motorists’ Association v Parker (1986) 6 NSWLR 517. The National Roads and Motorists’ Association is a company limited by guarantee.
50 (Citations omitted).
It follows, in my opinion, that if such an object is the sole object of such a requisition, then the directors are entitled to decline to act on the requisition at all: …
[154] McLelland J also held that the additional resolutions which would have resulted in the Council receiving members’ “opinions” on the same issues could not remedy the problem.51 He said:
In my view it is no part of the function of the members of a company in general meeting by resolution, ie as a formal act of the company, to express an opinion as to how a power vested by the constitution of the company in some other body or person ought to be exercised by that other body or person. … The members of the plaintiff no doubt have a legitimate interest in how these powers are exercised, but in their organic capacity in general meeting they have no part to play in the actual exercise of the powers.
[155] The Parker decision was recently followed in Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia, both at first instance and on appeal to the Full Federal Court of Australia.52 In that case, members of the Bank sought to move three resolutions at a general meeting. The resolutions sought to advise the Board of the members’ opinion on the Bank’s reporting about the financing of greenhouse gas emissions. The Board had declined to put two of the three resolutions to a general meeting—the Court ruled that the Bank was right not to do so.
[156] And in New Zealand, the Court of Appeal had earlier reached the materially same conclusion in Black White and Grey Cabs Ltd v Fox.53 There, a majority of members at a general meeting purported to pass a resolution to restrict ownership of taxis in the company to a single vehicle. Referring to the decision of the English Court of Appeal in Shaw, the Court held that the resolution was void, as the matter regulated was solely within the sphere of directors.
[157] And again, more recently, in Chetham v Mighty River Power Ltd, this Court held that the shareholding Ministers could not direct the board of Mighty River Power
51 By contrast, s 109 of the New Zealand Companies Act (which only applies to companies incorporated under that Act) allows shareholders to pass “opinion” resolutions relating to management of the company, although such resolutions are not binding on the board. But that section does not apply to the College (which is not incorporated under the New Zealand Act) and nor does the resolution presently at issue purport to be a non-binding “opinion” resolution.
52 Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia [2016] FCAFC 80, (2016) 248 FCR 280.
53 Black White and Grey Cabs Ltd v Fox [1969] NZLR 824 (CA).
in relation to the sale of land at Marsden Point and that the decision on the sale was the board’s alone.54 Venning J said:55
… The principle established in Automatic Self Cleansing Filter Syndicate v Cuninghame that there is a limit on the powers of shareholders to direct the Board was approved and confirmed by the Court of Appeal in Black White and Grey Cabs v Fox. In Automatic Self Cleansing Filter Syndicate v Cuninghame the directors of a registered company refused to carry out a sale agreement resolved upon in general meeting, relying upon the articles of association which delegated all powers of management to them. The members of the company argued that the articles were subject to the general rule that agents must obey the directions of their principal but the United Kingdom Court of Appeal decided that the resolution of the general meeting was a nullity and that the directors could ignore it.
As the Court of Appeal confirmed in Black White and Grey Cabs, the Court in Automatic Self Cleansing Filter Syndicate established the principle that a company is an entity distinct from its shareholders and its directors. Some of its powers may, according to its articles, be exercised by directors. Certain other powers may be reserved for the shareholders in general meetings. If powers of management are vested in the directors they and they alone can exercise those powers. The only way in which the general body of the shareholders can control the exercise of the powers vested by the articles in the directors is by altering their articles or, if opportunity arises under the articles, by refusing to re-elect the directors of whose actions they disapprove. They cannot themselves usurp the powers which by the articles are vested in the directors any more than the directors can usurp the powers vested by the articles in the general body of shareholders.
Application of the principles in this case
[158] To reiterate, the Donnelly group’s request (or requisition) for an EGM sought to put the following resolution to a vote of members:
That the Royal Australasian College of Physicians may only adopt a Position Statement on euthanasia, assisted suicide, assisted dying, medical aid in dying or similar topic that is endorsed by a poll of its full membership.
[159]And as also noted earlier, cl 7.1 of the College’s Constitution provides:56
The management and control of the business and affairs of the College shall be vested in the Board. The Board may exercise all such powers and do all such acts and things as the College is authorised to exercise and do.
54 Chetham v Mighty River Power Ltd [2014] NZHC 3202, (2014) 15 NZCPR 840.
55 At [37] and [38] (citations omitted).
56 Clause 7.1 can be contrasted with the very specific powers conferred on members by the Constitution. Those powers are that Members elect the Board and directors and can amend the Constitution. As a matter of logic, Members could not seek to amend the Constitution to confer specific management powers on members without also amending cl 7.1.
[160] The Courts have consistently held that such clauses confer the power of management on directors, not members. By way of example only, in the Commonwealth Bank of Australia case to which I have referred above, the relevant clause was materially identical to cl 7.1 of the College’s Constitution here.
[161] In my view the Board’s management powers include the power to make statements or express views on behalf of the College. That is made quite clear by cl 7.5 of the Constitution.57 If (by virtue of subcl 7.5.1) the Board can authorise others to speak on behalf of the College, it necessarily follows that the Board themselves must be the original repositories of that authority or power. And the prohibition in subcl 7.5.2 underscores the point that making such statements is a matter for the Board—not members.58
[162] The short point is that I agree with Mr Friar that the proposed resolution effectively sought to usurp the Board’s management powers. Its object was to give members (by way of a majority vote) the power to decide the College’s position on voluntary assisted dying and to dictate any public statement on that issue. The resolution would prohibit the Board from settling the College’s position on this issue in a position statement; it would mean that the College could only adopt a position statement that had been approved by members.
[163] I am unable to accept what I understood to be Ms Casey’s submission, namely that the resolution did not offend cl 7.1 because a general meeting was only sought to “consider the appropriate process by which the RACP should adopt and promulgate a formal position (if any)” and that it did not seek to direct the Board as to the “content” of the Statement. The resolution was plainly directed at prohibiting the publication of any position statement on voluntary assisted dying unless it was approved by a majority of members. Dr Donnelly specifically acknowledged in her affidavit that the purpose of the meeting request and proposed resolution was “to ensure that members had the opportunity to consider and decide whether that [position in relation to voluntary assisted dying] was appropriate ... ”.59
57 Set out at [11] above.
58 Namely that members may not make any statement or express any view which purports to be a statement or view of the College.
59 (Emphasis added.)
[164] As Mr Friar said, if the plaintiffs are right, the Board’s position would be untenable. It would mean that whenever 100 out of the 25,000 College members wished to express a view on an issue, they could require that it be voted on at a general meeting, rather than be determined by the Board. That is, 0.4 per cent of the members could take a decision away from the Board and toss it to the members to decide. That is a powerful—and in my view determinative—point against the exercise of the Court’s discretion here.
Conclusion
[165]The application for review is declined.
[166] I can see no reason why the College should not be entitled to its 2B costs and disbursements in the usual way. If counsel cannot agree, brief memoranda may be submitted.
Rebecca Ellis J
Solicitors:
McLeod & Associates, Auckland for Plaintiffs Bell Gully, Auckland for Defendant
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