Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand

[2017] NZHC 2887

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-488-000066 [2017] NZHC 2887

UNDER

Section 106(2)(b) and (d) of the Health

Practitioners Competence Assurance Act, and Schedule 1, s 5(3) of the Health Practitioners Competence Assurance Act

2003

BETWEEN

LYNDA MARIE EMMERSON Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND

Respondent

Hearing:	23 November 2017
Counsel:	C Muston for Appellant DR La Hood and AR Garrick for Respondent
Judgment:	23 November 2017

JUDGMENT OF DOWNS J (Interim name suppression)

This judgment was delivered by me on Thursday, 23 November 2017 at 11.15 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

C Muston, Whangarei.

Luke Cunningham Clere, Wellington.

EMMERSON v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 2887 [23 November 2017]

[1]      The background to this judgment is in mine of 20 November 2017.1   In brief, the     New     Zealand     Health     Practitioners     Disciplinary     Tribunal     found Dr Lynda Emmerson  committed  professional  misconduct:  prescribing  drugs  of dependency to people close to her; using methamphetamine and cannabis; and attempting to mislead the prosecuting authority—including in writing—about her drug use.   Dr Emmerson appealed in  relation to both liability and penalty—the Tribunal ordered cancellation of her registration.  I dismissed the appeal.

[2]      Dr Emmerson may bring an application for leave for a second appeal to the

Court of Appeal.  She seeks interim name suppression.

[3]      The  parties  characterised  the  application  as  a  stay  in  relation  to  my conclusion there was no basis for name suppression, and should lapse.   This characterisation is inapt.  The Tribunal declined to grant Dr Emmerson permanent name suppression.   However, it granted suppression for a month to allow her to lodge an appeal to this Court and here, seek interim orders.  An order was made by consent on 23 June 2017.  Dr Emmerson did not appeal the Tribunal’s conclusion in relation to name suppression. And at the hearing of the appeal, Dr Emmerson sought name suppression if, and only if, I allowed the appeal in relation to either liability or penalty.  Against this background, the application is a fresh one for interim name suppression.  But nothing turns on this.

[4]      Mr  Muston  contended  Dr Emmerson  should  have  name  suppression  to protect her position in the interim.  He observed other medical professionals have, on occasions,  been  the  beneficiary  of  interim  orders,  and  Dr Emmerson  should  be treated “fairly and equally”.  Mr Muston was not able to identify specific grounds for suppression  beyond  that  Dr Emmerson  will  experience  “shame”  if  her  name  is published, and she has been in a “terrible situation” through and in consequence of the medical disciplinary proceedings.

[5]      Mr La Hood resisted the application on the bases the putative prejudice was generic, and the presumption of open reporting had not been displaced.  Mr La Hood

also observed Dr Emmerson had chosen to bring defamation proceedings against two

1      Emmerson v A Professional Conduct Committee [2017] NZHC 2847.

doctors in connection with her earlier practise as a psychiatric registrar at Whangarei

Hospital, which were live before Davison J in Whangarei.

[6]      I  am  satisfied  the  application  should  be  dismissed  for  six  inter-related reasons.

[7]      First, disciplinary proceedings in a medical context carry a presumption of open reporting.2    So too related appeals.3    It follows the public is entitled to know about this case, including Dr Emmerson’s identity, unless cogent reasons exist for suppression.

[8]      Second, the fact Dr Emmerson is a professional who has fallen from grace is not, by itself, sufficient.   Shame, even ignominy, can follow a conclusion a professional has committed misconduct.  But as the Court of Appeal has observed, professionals do not enjoy a different standard of justice from anybody else.4

[9]      Third, while Mr Muston is correct examples of interim name suppression in relation to medical professionals can be readily identified, that is only because the circumstances of those cases required suppression.  And, more particularly, because the individuals concerned could identify particular reasons for suppression.  Fairness and  equality  do  not  justify  suppression  unless  Dr Emmerson  can  demonstrate suppression is justified with reference to her circumstances.

[10]     Fourth, no reasons have been identified for interim name suppression beyond the  generic.    Indeed,  Mr  Muston  responsibly  observed  there  was  little  about Dr Emmerson’s  personal  circumstances  he  could  advance  in  support  of  the application.

[11]     Fifth, Dr Emmerson may not appeal to the Court of Appeal as a matter of right.  That Court’s leave is required.  It may be granted only if that Court is satisfied

2      Health Practitioners Competence Assurance Act 2003, s 95.

3      Y v Attorney-General [2016] NZCA 474.

4      Y v Attorney-General, above n 3, at [32].

the  case  raises  a  matter  of  general  or  public  importance,  or  Dr Emmerson  has suffered or may suffer a miscarriage of justice.5

[12]     Sixth,   Dr Emmerson   accepts   engaging   in   the   behaviour   that   led   to cancellation of her registration.  To elaborate, Dr Emmerson accepts she prescribed drugs of dependence to those close to her; regularly used methamphetamine and cannabis;  and  misled  the  prosecuting  authority.    The  only  factual  conclusion Dr Emmerson   contests   is   whether   she   intentionally   misled   the   authority. Dr Emmerson’s  case  is  that  her  acknowledged  misconduct  ought  not  to  be considered professional misconduct, or have resulted in cancellation of her registration as a doctor.  Mr Muston said the latter is likely to be the issue ventilated, if leave is granted, to the Court of Appeal.

[13]     I  consider  there  is  a  high  public  interest  in  these  facts  being  known irrespective of whether an appellate Court ultimately concludes the penalty was too severe.  Equally, any “shame” vis-à-vis publication of name is logically referable to Dr Emmerson’s  admitted  conduct  irrespective  of  whether  it  should  have  led  to cancellation of registration.

[14]     The application is dismissed.

……………………………..

Downs J

5      Health Practitioners Competence Assurance Act, s 113(4) and Criminal Procedure Act 2011, s 303(2).