F v Medical Practitioners Disciplinary Tribunal HC Auckland Ap21-Sw01

[2001] NZHC 1195

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY AP21-SW01

IN THE MATTER of Part XI of the High Court Rules

AND

IN THE MATTER OF Section 121 of the Medical Practitioners Act 1995

BETWEEN “F” Registered medical practitioner of Rotorua
Appellant

AND THE MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Respondent

Hearing: 12 September, 4 & 29 October 2001

Counsel: Mr AH Waalkens & Ms CL Garvey for Appellant
Ms K Davenport for Respondent
Mr MF McClelland for Complaints Assessment Committee

Judgment: 5-12-01

JUDGMENT OF LAURENSON J

Solicitors:
N Fisher, DX CP21025, Auckland
KG Davenport, PO Box 141, Shortland St, Auckland
KPMG Legal, DX SP26517, Wellington

Introduction & Issue

[1] This is an appeal by way of case stated on points of law pursuant to s 121 of the Medical Practitioners Act 1995. The sole issue is whether the appellant’s name should be published or not.

[2] The matter was originally set down for a half day hearing in the Duty Judge List on 12 September 2001. I regret to have to note that it soon became abundantly clear that there was never any prospect that the hearing would be completed in a half day. In fact, a further two half days were required to do so, namely on 4 and 29 October. There was a further delay until 16 November 2001 after I found it necessary to refer the case back to counsel for restating. I raise this issue because delays such as this make it extremely difficult when coming to the point of having to recollect all matters for the purposes of a decision.

The Background

[3] On 19 July 1994 the appellant, who is a specialist obstetrician, attended Mrs Tracey Waenga on the birth of her child Adam Waenga at Rotorua Hospital.

[4] The birth was a difficult one and was finally achieved using forceps and stirrups.

[5] As a result of trauma suffered at birth the child was severely brain damaged. His condition was described as being an epileptic who had to be tube fed, and a profoundly deaf quadriplegic. He needed frequent suctioning and required oxygen 24 hours a day. He was also prone to infections and could rapidly become seriously ill. Adam has since died.

[6] Mrs Waenga complained to the Medical Practitioners Disciplinary Committee pursuant to s 42A of the Medical Practitioners Act 1968 (the old Act). The complaint was not disposed of by 1 July 1996 on which date the Medical Practitioners Act 1995 (the Act) came into force. The complaint was, therefore, dealt with under the new Act with the exception that the penal provisions under the old Act, which were current at the time of the complaint, continued to apply.

[7] The new Act made provision for a new complaints regime. Since its inception all complaints are referred to the Complaints Assessment Committee (CAC) constituted by s 88. This Committee is required, pursuant to s 92, to determine how the complaint should be determined. Pursuant to s 92(l)(d) it may determine that a complaint should be considered by the Medical Practitioners Disciplinary Tribunal (the Tribunal), which is constituted by s 96.

[8] The CAC, to whom the complaint was referred in this case, determined that it should be considered by the Tribunal. Accordingly, pursuant to s 93(1)(b), it framed an appropriate charge and submitted this to the Tribunal. This charge alleged the appellant had been guilty of conduct unbecoming a medical practitioner and that conduct reflected adversely on the practitioner’s fitness to practise medicine. Such conduct, if proved, is pursuant to s 109(c), grounds upon which a medical practitioner may be disciplined.

[9] In its decision dated 29 June 2000 the Tribunal found the charge (as amended during the hearing) proved, namely the appellant had erred in his clinical management of the labour of Mrs Waenga and the delivery of Adam Waenga in that he erred in his judgment in commencing syntocin infusion to Mrs Waenga rather than facilitation delivery.

[10] In a supplementary decision dated 15 September 2000, and delivered pursuant to s 110 of the new Act in relation to penalties, the Tribunal

[a] Censured the appellant pursuant to s 110(1)(d);

[b] Fined him $700 pursuant to s 154 of the old Act (this being the penal provision in force at the time of the conduct in question). It should be noted that the maximum fine under s 154 was $1,000 whereas under s 110(1)(e) of the new Act it is $20,000;

[c] Ordered him to contribute $21,968.80 (35%) of the costs incurred by the CAC and the Tribunal; and

[d] Ordered, pursuant to s 108 of the old Act, that an interim order prohibiting the publication of the appellant’s name be discharged. This interim order had been made pursuant to s 106(2)(d) of the Act prior to the commencement of the complaint hearing before the Tribunal.

[11] The appellant appealed to the District Court pursuant to s 116 of the new Act against the refusal of the Tribunal to continue the prohibition against publication of his name.

[12] In a reserved decision dated 30 January 2001 the learned District Court Judge dismissed the appeal.

[13] The appellant has now appealed to this Court pursuant to s 121 of the new Act by way of Case Stated on questions of law.

The Questions of Law Contained in the Case Stated

[14] Section 121(1) states:

“121. Appeal on question of law - (1) Where, in respect of any appeal under section 116 of this Act, the person or body whose decision or order is appealed against, or the appellant, is dissatisfied with any decision of the District Court Judge as being erroneous in point of law, the person or body or the appellant may appeal to the High Court by way of case stated for the opinion of that Court on the question of law only.”

[15] This appeal is therefore directed to the issue of whether the decision of the learned District Court Judge is erroneous on points of law. The Judge having received submissions from the parties, nominated the questions of law as follows:

“I am stating a case for the consideration of the High Court as to whether the decision made in respect of declining suppression of the appellant’s name and any particulars that identify him was exercised lawfully or unlawfully, particulars of which include:

(a) How much regard is to be paid to the views of the MPDT in a matter concerning name suppression, and whether the court is in as good, if not a better position, to assess the “public interest” issues arising, rather than the MPDT.

(b) Whether it is correct to regard the hearing before the MPDT where name suppression was granted as not being a “public” hearing.

(c) Whether any distinction is to be made between the public interest issues concerning “openness” in criminal hearings rather than in a civil hearing such as the subject one conducted by the MPDT.

(d) Whether as a matter of law in all the circumstances permanent name suppression of the appellant’s name and/or identity ought to have been granted.”

[16] The task of formulating questions for the purposes of a case stated limited to questions of law is a notoriously difficult one.

[17] In the present case, and with respect to those involved in formulating same, I consider the questions as stated do not conform to the requirements of s 121(1).

[18] The appeal arises where a party to the appeal before the District Court “is dissatisfied with any decision of the District Court Judge as being erroneous in point of law”. In such a case the appellant may appeal to this Court “by way of case stated for the opinion of this Court” on the question of law only.

[19] The present appeal must therefore be directed to the District Court appeal judgment. The case as stated, however, appears to be directed at the decision of the Tribunal, i.e. “whether the decision (declining suppression) was exercised lawfully or unlawfully”.

[20] The decision which “declined suppression” was that of the Tribunal. That decision was made pursuant to the exercise of a direction under s 106(1)(d).

[21] When this decision was appealed to the District Court, that Court, whilst it was empowered by s 118(2) to “confirm, reverse, or modify” the decision, was nevertheless constrained to do so only in the context of determining whether:

[a] The decision-maker got the law wrong;

[b] A relevant consideration has not been taken into account;

[c] an irrelevant consideration has been taken into account; or

[d] The decision is plainly wrong, i.e. a clear failure to balance properly the relevant considerations.

A decision will not be regarded as being plainly wrong simply because the appellate Court might itself come to a different conclusion and exercise the discretion differently. The appellate Court must be able to say it was simply not open to the person exercising the discretion to come to the conclusion which was reached.

[22] The short point is that this Court is not entitled on this appeal to undertake a review of the Tribunal’s decision as the case seems to invite. Rather the Court is only entitled to consider whether the District Court Judge was erroneous in law when he undertook his rehearing of that decision.

[23] This distinction is important in this case because much of the appellant’s submissions were directed to showing that the Tribunal had failed to exercise its discretion properly.

[24] The matter which this Court has to consider is whether the District Court Judge, in his decision, correctly applied the relevant principles of law when considering the exercise by the Tribunal of the discretion whether or not to remove suppression of the appellant’s name.

[25] Having made this distinction it then becomes necessary to refocus the questions stated to ensure that these are indeed directed to the District Court appeal decision and not the Tribunal’s decision.

[26] Having considered this matter at some length, and in the light of the issues raised by counsel, I invited them to consider whether those issues would be more appropriately addressed by the following questions. These involved a restatement of paragraph 11 of the case stated as follows:

“11. I am stating a case for the consideration of the High Court to determine whether my decision dated 30 January 2001 was erroneous in point of law in the following respects:

[a] (i) Did I correctly identify the legal requirements imposed by the Medical Practitioners Act 1995 on the Medical Practitioners’ Disciplinary Tribunal in relation to the exercise of its discretion pursuant to s 106(2) of that Act, namely when it decided that the interim order for the non-publication of the appellant’s name not be continued.

(ii) Did I consider those requirements in accordance with the legal rules applying to an appeal pursuant to s 116 of the Act.

[b] Did I correctly determine the legal significance of an order prohibiting publication of the appellant’s name in the context of the requirement that a disciplinary hearing under the Act should prima facie be in public.

[c] Did I correctly identify the legal relationship between public interest issues concerning criminal hearings, as opposed to those arising in disciplinary hearings under the Act.

[d] Whether I erred in finding that the Tribunal had, as a matter of law, exercised its discretion correctly pursuant to s 106(2), namely when deciding not to continue the interim order preventing publication of the appellant’s name.”

[27] Counsel, having considered same, then agreed that the above questions did appropriately address the issues in this case. I now turn to the four questions as restated:

[28] Question [a]

(i) Did the District Court Judge correctly identify the legal requirements imposed by the Medical Practitioners Act 1995 on the Medical Practitioners’ Disciplinary Tribunal in relation to the exercise of its discretion pursuant to s 106(2) of that Act, namely when it decided that the interim order for the non-publication of the appellant’s name not be continued?

(ii) Did he consider those requirements in accordance with the legal rules applying to an appeal pursuant to s 116 of the Act?

[29] It is for the appellant to satisfy this Court the District Court Judge did not pay proper regard to the decision, and accordingly, failed to review it appropriately.

[30] The appellant’s submissions came down to two matters:

[a] Whilst the Tribunal may be peculiarly suited by reason of the qualifications of its members to determine medical clinical issues, it has no special ability to determine matters of public interest.

[b] The District Court Judge did not adequately examine the Tribunal’s reasoning in relation to the public interest and, in particular, he failed to consider whether the Tribunal had addressed the question whether publication of the appellant’s name was in the public interest in that it protected the public.

[31] As to the first question, the law in relation to the significance which should be given to the views of specialist tribunals when these are being considered on appeal, is relatively clear. They were referred to in Tizard v Medical Council of NZ (unreported M.2390/91 H.C. Auckland 10.12.92). This was a decision of a full Court which, under the old Act, was conducting an appeal. In other words it was undertaking the function now done by the District Court in the present case under the new Act. The following extract was referred to me from p 13:

“Although this Court must exercise its own judgment upon the case, it is right for it to give weight to the decision made by a tribunal composed mainly of medical men whose knowledge and experience qualify them to evaluate the seriousness of the conduct of which the Appellant was found guilty, and to assess the appropriate method of dealing with it. We should be slow to interfere with this judgment upon such a question.”

[32] The obligations of an appeal court in such cases were also referred to by Elias J (as she then was) in another case under the old Act, namely B v Medical Council (HC11/96, High Court Auckland 8.7.96):

“The structure of the disciplinary processes set up by the Act, which rely in large part upon judgment by a practitioner’s peers, emphasises that the best guide to what acceptable professional conduct is the standards applied by competent, ethical, and responsible practitioners. But the inclusion of lay representatives in the disciplinary process and the right of appeal to this court indicates that usual professional practice, while significant, may not always be determinative: the reasonableness of the standards applied must ultimately be for the court to determine, taking into account all the circumstances including not only practice but also patient interests and community expectations, including the expectation that professional standards are not to be permitted to lag. The disciplinary process in part is one of setting standards.”

[33] What becomes clear is that the District Court Judge in this case was entitled to accept the decision by the Tribunal on the suppression issue if he was satisfied it was reasonable in the sense that it was lawful by reference to the criteria I have referred to in paragraph 21.

[34] The appellant submitted the Tribunal did err in respect to seven fundamental matters. The question for this Court is whether the District Court Judge addressed them appropriately on appeal.

[35] The First Error Alleged Was:-

(a) “At paragraph 4.19 the Tribunal was influenced by a concern that suspicion may fall on others in the area. However, the other three practitioners in the area have no concern and are supportive - see F’s affidavit paragraphs 24 and 25 and the written confirmations from the three practitioners at pages 8-10 of the annexures thereto.”

In relation to this the Tribunal said at paragraph 4.19

“ALSO, there is no doubt that maintaining name suppression orders causes suspicion to fall on all practitioners, particularly in a smaller, regional centre where there may be only a few practitioners, or a small number of specialists within the relevant area of practice. If a Charge is upheld, it is less easy to justify a continuation of any such suspicion on other practitioners.”

The Judge noted at paragraph 25:

“[25] The appellant refers to the contention that suspicion may fall upon other specialists practising in the area. In this regard, he points to the letters received from the other practising obstetricians and specialists in this area, who say that they would not be concerned if his name was not published. Further, the submission is that the Tribunal placed undue weight on the possibility that other practitioners would be put under unfair suspicion, if the appellant’s name was not published.”

and at paragraph 34:

“[34] In giving that decision the Tribunal said that it was required to balance the competing interests of the practitioner, his or her family, or wider interests, the interests of the complainant, the public interest as residing in the principle of open justice, the public’s expectation of the accountability and transparency of the disciplinary process, and the importance of freedom of speech and the media’s right to report Court proceedings fairly of interest to the public, and the interests of any other person. In granting this interim suppression order the Tribunal recognised that the charge was confined to a single episode of care, and that there was nothing to suggest that any other member of the public was at risk in a similar way. The Tribunal also recognised that adverse publicity could impact upon F, his professional reputation, and his family, and may cause past events to be unfairly revisited. The Tribunal was also concerned that identification of F as a specialist obstetrician and gynaecologist might cause suspicion to fall on any other of the small number of such practitioners residing in the Rotorua/Taupo district, and therefore, that the order for interim suppression of name was to extend to the reporting of F’s specialist professional status. A further factor taken into account by the Tribunal was that the charge was at the lowest level of the charges available in the hierarchy of charges contained in s 109 of the Act.”

[36] When considering this issue the District Court Judge had been provided with signed letters from the three other practitioners practising as obstetricians and gynaecologists in the Lakeland Health Region which includes a population of approximately 115,000 people. In summary the three practitioners all supported the suppression of the appellant’s name. The same information had not been made available to the Tribunal.

[37] What becomes clear is that the District Court Judge, even though he had become aware of the attitude of the fellow practitioners, still considered the concerns held by the Tribunal were relevant. That concern could not be said to be a determining factor, but it was nevertheless a relevant factor properly taken into account by the Tribunal and then considered by the Judge.

[38] I have to comment that whilst one may admire the actions of the other practitioners in supporting the appellant, possibly at their own expense, I do not see that their action in doing so is really relevant. Whatever may be their view of the matter, suspicion could still fall on them. There are, however, two other matters which should be considered. First, one has to ask, whether those three persons may have felt obligated to respond as they did, presumably as a result of a request from the appellant. Secondly, and more significantly, whatever view one may take of this matter, it is, in my view, highly likely that at least some potential patients of any of the specialists, including the appellant, could prefer not to engage the services of a specialist in respect of whom the findings in this case had been made. There can be no doubt that any such potential patient has that right. This being the case, counsel for the CAC submitted that if the suppression order remained in place then a referring general practitioner would not be able to give an answer to a patient seeking to find out which specialist was, in fact, involved.

[39] Quite apart from the additional two matters to which I have just referred, I am satisfied the District Court Judge did consider the issue raised under this point and he did so appropriately.

[40] The Second Error Alleged Was

“(b) “At paragraph 4.18 the Tribunal refers to the considerable publicity. The Tribunal has wrongly equated the print media publicity as a barometer of public interest. This is not necessarily so at all.”

In relation to this the Tribunal said at paragraph 4.18 -

NOTWITHSTANDING that name suppression was granted, there was considerable publicity, particularly in the print media, at the time of the hearing. There is clearly a significant degree of legitimate public interest in this case in the local area.”

The Judge referred to this at paragraph 21 -

“[21] The appellant strongly submits that media interest is not necessarily to be equated with public interest. The submission is that publicity might have the effect of upsetting his existing and future potential patients. The submission is that this area of specialist practice is particularly emotive and has a corresponding high risk of damage from adverse publicity.”

And at paragraph 40 -

“[40] The appellant strongly submitted that the interest of the news media could not necessarily be equated with the public interest. In certain cases that may well be the case, but as has been commented the media are “surrogates of the public (R v Liddell [1995] 1 NZLR 536 per Cooke P at page 546). I am not prepared to accept or assume, as I was invited to do so, that the media will necessarily report the proceedings inaccurately or unfairly. Further, I am of the view that the ordinary reader should be able to discern and fairly balance, after fair and accurate reporting, the level of culpability that the Tribunal has found against the appellant.”

[41] As I see it there are two interests to be considered under this head. First the public interest as expressed in s 3(1) of the new Act which states:

“3. Principal purpose - (1) The principal purpose of this Act is to protect the health and safety of Members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practise medicine.”

Secondly the extent of the interest actually shown by the public in this case.

[42] The Tribunal appears to have concluded, by reference to the considerable publicity given to it by the media, there was a significant degree of interest actually shown by the public in this case in the local area. This, in turn, was taken by the Tribunal to be an indication of interest in a matter where the public had a legitimate interest.

[43] Whether or not the public takes an interest in a particular matter does not necessarily determine whether the object of that interest is a matter of public interest.

[44] In my view the Judge clearly recognised this distinction and properly assessed the weight given to it by the Tribunal.

[45] The Third and Fourth Errors Alleged Were Linked. They were:

“(c) “At paragraph 4.20 the Tribunal refers to s 106(1) requiring hearings to be “in public”. It then refers to the balancing of interests between the parties and at paragraph 4.21 (page 58) endeavours to balance the competing interests.”

(d) “What it overlooks is that there was very full publicity indeed of the hearing and of all the evidence in the hearing and the various decisions. What had not been published was the doctor’s name.”

In relation to this the Tribunal said at paragraphs 4.20, 4.21 and 4.22 -

“FINALLY in this regard, whilst the decision whether or not to grant or maintain name suppression is entirely discretionary, the Tribunal is bound to apply the relevant provisions of the Act. Section 106(1) requires that hearings of the Tribunal shall be heard in public. The consideration of the application for permanent name suppression requires a balancing of F’s interests, as explained in the submissions, together with those of Mr and Mrs Waenga’s (and any other person), and the public interest.

THE Tribunal must therefore endeavour to balance the competing interests of those persons referred to, and the public generally. The nature of this latter interest has been discussed now in a number of cases in the Tribunal, the District Court and the High Court. In general terms, it has been described as residing in the principle of open justice, the public’s expectation of the accountability and transparency of the disciplinary process, the public confidence in the medical profession, the importance of freedom of speech and the media’s right to report court proceedings fairly of interest to the public.

AS the Tribunal has stated on similar occasions, Parliament clearly intended that proceedings of the Tribunal should be conducted in the public domain so that the public can have confidence in the integrity of the professional disciplinary process.”

[46] As I understand it, the appellant was submitting that the Tribunal, when evaluating the competing interests referred to in s 106(2), placed a disproportionate emphasis on the prima facie requirement under s 106(1) that every hearing of the Tribunal be in public.

[47] The Judge referred to the nature of the balancing exercise at paragraph 34:

“[34] In giving that decision the Tribunal said that it was required to balance the competing interests of the practitioner, his or her family, or wider interests, the interests of the complainant, the public interest as residing in the principle of open justice, the public’s expectation of the accountability and transparency of the disciplinary process, and the importance of freedom of speech and the media’s right to report Court proceedings fairly of interest to the public, and the interests of any other person.”

and at paragraph 41 -

“The issue is not whether the appellant has had in fact a partial public hearing. The issue is whether or not the Tribunal adequately and fairly considered the statutory criteria in exercising its discretion not to suppress his name. The Tribunal addressed the right question, and in my view, took into account in answering that question those factual considerations applicable to this case that were relevant to determine the balance.”

[48] In my view he specifically addressed the Tribunal’s consideration of the balancing which must occur between the prima facie requirement for a public hearing on the one hand and the interests of the appellant on the other. He concluded the issues had been addressed and appropriately.

[49] Furthermore, the Judge quite correctly found that even though the hearing had, in all respects, been held in public, that had nothing to do with a quite separate issue, namely whether, as a matter of discretion, the appellant’s name should or should not be published. The determination of that question involved a consideration as to whether the public interest required publication to enable all members of the public to be aware of the identity of the practitioner who was the subject of the hearing. This issue becomes clearer by reference to the next of the alleged errors.

[50] The Fifth Error Alleged Was

“(e) Coupled with (c) and (d) above, the Tribunal paid no regard to the principle in B v B & Ors (HC.4/92, 6 April 1993, Blanchard J.) i.e.

If a professional person was not banned or suspended from practice, this implied a fitness to practise which, in turn, justified suppression of name.”

[51] As noted by the appellant the only reference to this decision by the District Court Judge is at paragraph 17 where he stated:

“For completeness sake I record that I have considered B v Dentists Disciplinary Tribunal”.

[52] The Judge did, however, refer to S v Wellington District Law Society [2001] NZAR 465, where a Full Court concluded in relation to s 111 of the Law Practitioners Act 1982, (which is in essentially the same terms as s 106), suppression should be allowed. This was, however, in relation to a solicitor who was no longer practising and was required to make further application if he wished to practise on his own account.

[53] The Judge also referred to A v Medical Council of New Zealand (High Court Auckland, HC. 163/98, 15 June 1999, Randerson J.), an appeal under the 1968 Act. Here suppression was allowed in respect of a practitioner found guilty of conduct unbecoming.

[54] Significantly so far as the present case is concerned, when reaching his decision Randerson J. said at p 20

“Very different considerations now apply under the 1995 legislation but I regard the regime applicable under the 1968 Act as a material factor. I also take into account in considering public interest factors the view expressed by the Chairman of the Medical Council that the practitioner is “unlikely to put any other members of the public at risk in a similar way”. No submission has been made to the contrary. On that basis, the Medical Council determined there was no purpose in identifying him by name. I also bear in mind that the primary purpose of disciplinary proceedings under the 1968 Act is the protection of the public and that the publication of the practitioner’s name will not advance that purpose. Rather, publicity would visit drastic consequences upon him which are not warranted in the public interest and could seriously damage his reputation.”

[55] Under the 1968 Act disciplinary proceedings were heard in private. Pursuant to s 106 these are now heard in public. There is, therefore, an entirely different emphasis in favour of these proceedings being open to the public. The same section does, however, provide that after balancing any competing interests, the whole or any part of a hearing may be in private and publication of the name of any person may be prohibited. Absent any such order the hearing and the names of persons involved are to be available.

[56] The decision in B v B was decided within the context of s 62 of the Dental Act 1988 which provides for a similar regime as in s 106. To that extent this decision is, therefore, relevant to the present case.

[57] There are, however, two important differences between the two cases:

[a] B v B was concerned with personal behaviour as opposed to clinical error;

[b] The definitions of the offending in the two cases are fundamentally different.

[58] Section 54 of the Dental Act refers to the powers of the Disciplinary Tribunal. Section 54(1) states:

“54. Powers of Disciplinary Tribunal - (1) Subject to subsection (2) of this section, if a Tribunal, after conducting a hearing in accordance with this Part of this Act, is satisfied in respect of any practitioner that the practitioner-

(a) . . .

(b) Has been guilty of any act or omission in the course of or associated with the practice of dentistry that was or could have been detrimental to the welfare of any patient or other person; (my emphasis) or

(c) Has been guilty of professional misconduct (including, without limiting the generality of the foregoing, professional negligence),-

the Tribunal may, except as provided in subsections (2) and (3) of section 55 of this Act, by way of penalty, do any one of the things authorised by subsection (1) of that section.”

[59] This is to be contrasted with s 109(1)(c) of the new Act, i.e.

“109. Grounds on which medical practitioner may be disciplined - (1) Subject to subsections (3) and (4) of this section, if the Tribunal, after conducting a hearing on a charge laid under section 102 of this Act against a medical practitioner, is satisfied that the practitioner-

(a) . . .

(b) . . .

(c) Has been guilty of conduct unbecoming a medical practitioner, and that conduct reflects adversely on the practitioner’s fitness to practise medicine; . . .” (My emphasis)

[60] The short point is that under s 109(1)(c) a finding of conduct unbecoming, as in the present case, by definition includes a finding that the guilty conduct “reflects adversely on the practitioner’s fitness to practise medicine.” Thus an error of judgment which did not warrant such a finding could not, by definition, constitute an offence warranting any punishment.

[61] The same criterion does not apply under s 54 of the Dental Act. The result is, that the discretion to suppress an offender’s name under that Act falls to be exercised in cases where the offence does not necessarily imply an adverse reflection on the dental practitioner’s fitness to practise dentistry. Where, however, there is a finding under s 109(1)(c) then the exercise of the discretion to suppress has to be considered in relation to a finding which, by definition, is a finding the medical practitioner, conducted him or herself in a manner which reflected adversely on that practitioner’s fitness to practise medicine.

[62] This being the case the question of suppression or not assumes a quite different dimension. The nature of the finding creates, in my view, an additional factor to be taken into account which right from the start makes the exercise of the discretion in favour of non-publication, at the very least, more difficult.

[63] In this regard it is important to note the qualifying words in relation to conduct unbecoming were introduced for the first time by s 109 of the new Act when it came into force in 1995. It is also important to note in relation to this issue, in the present case the finding of conduct unbecoming was not disputed by the appellant.

[64] For these reasons I do not consider the comments of Blanchard J. are applicable to the present case. Therefore, the fact that the District Court Judge did not refer in detail to his consideration of B & B cannot amount to an error on his part.

[65] In the course of the hearing before me, counsel for the appellant submitted a copy of a letter dated 19 September 2001 from the Medical Council of New Zealand addressed to the appellant. The Tribunal had requested the Council’s Professional Standards Committee to consider whether or not it would be desirable, useful or beneficial for the appellant to undergo a competency review. Having considered the matter the Council decided that the appellant was not to be required to undertake such a review at this time. It was urged upon me that this new development completely altered the whole basis upon which the central issue, namely publication or not, should be considered.

[66] I have to say I completely disagree. This assessment, made after the event, does not alter in any way the finding already made by the Tribunal, that the appellant had earlier been found to have been guilty of a serious error of judgment which reflected adversely on his fitness to practise medicine. This was not disputed by the appellant. It may have been a single incident in an otherwise exemplary practice. It may also be the case that the appellant has not only been allowed to continue to practise, but his peers have decided he need not be reviewed at this time. The fact unfortunately remains, he made a serious misjudgment. The public, and in particular potential patients, are entitled to know whether they wish to engage his services in the future.

[67] The Sixth and Final Alleged Error Was:

“(f) The final matter raised by the appellant in relation to the first question was a submission that at no point did the Tribunal address the question whether the publication of the appellant’s name would protect the public. Similarly this question was not addressed by the District Court Judge on appeal.”

[68] This issue arises by reference to s 3(1) of the new Act which states, as I have already noted:

“3. Principal purpose - (1) The principal purpose of this Act is to protect the health and safety of members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practise medicine.”

[69] This provision did not appear in the 1968 Act.

[70] The appellant submitted that whilst both the Tribunal and the Judge had addressed the question of public interest in the balancing exercise involved in removing the interim non-publication order, this had been considered only in terms of the public right to know the name of the appellant and without specific reference to the element of protection of the public as stated in s 3.

[71] I agree there is no such specific reference in either the Tribunal’s decision or the appeal decision, but in my view that omission, if it can be called that, is not material because both clearly addressed the issue without saying so in as many words.

[72] In the final analysis the Tribunal, and later the District Court Judge, were faced with a situation where it was not contested on appeal

[a] The appellant had made a serious error of judgment;

[b] This had resulted in the dreadful condition of the child at birth; and

[c] The error of judgment was such that it reflected on the appellant’s fitness to practise medicine.

[73] In these circumstances the Tribunal found that suppression should be removed because the public had a right to know.

[74] If one then asks whether this conclusion can be said to necessarily involve the protection of the public then, I consider, the answer must be “yes”. The requirement under the new Act for hearings to be in public is a clear indication the Legislature intended the public was to be informed. That change must be seen in the context of the principal purpose of protecting the public. Members of the public are entitled to be able to make an informed choice as to which medical practitioner they wish to engage.

[75] Thus, if a medical practitioner has been found guilty of a serious error of judgment, such that it reflects adversely on his or her fitness to practise medicine, then, in my view, it follows that the public is entitled to know of it to enable an informed choice to be made. The protection sought by the new Act is provided by that knowledge.

[76] In my view it is implicit from the deliberations of the Tribunal that when it came to balance the public interest against that of the appellant, it was addressing precisely the issue of public protection.

[77] I also consider the same can be said in relation to the District Court Judge’s finding on this point. At paragraph 39 he said:

“[39] The Tribunal clearly considered the balance of the public interest as against the private interests of the appellant. In considering this balance, the Tribunal weighed the gravity of the conduct that it found proved. Being a specialist Tribunal, on that issue, it was ideally placed to measure the public interest to be protected. On the other hand, again, being a specialist Tribunal, it would be sensitive to the private interests of the appellant. The decision of the Tribunal reflects that sensitivity, and again, shows that it carefully weighed the balance of these two competing interests. In its opinion the Tribunal came to the view that it was necessary for the public interest that the name of the appellant should be published. I have read all of the materials put before me and I conclude that the decision made by the Tribunal was exercised after a careful consideration of the competing interests.”

[78] For the above reasons I have concluded the Judge did not err in any of the six respects submitted by the appellant. Accordingly I find that the answers to the two questions posed in Question [a] is “Yes”.

[79] Question [b]

Did the District Court Judge correctly determine the legal significance of an order prohibiting publication of the appellant’s name in the context of the requirement that a disciplinary hearing under the Act should prima facie be in public?

[80] This question has already been considered in paragraphs [45] to [49] of this decision. For the reasons referred to there I consider the Judge did correctly distinguish between interest shown by the public on the one hand and matters of public interest on the other.

[81] Accordingly, in my opinion, the answer to Question [b] is “Yes”.

[82] Question [c]

Did the District Court Judge correctly identify the legal relationship between public interest issues concerning criminal hearings, as opposed to those arising in disciplinary hearings under the Act?

[83] The appellant submitted the Tribunal had misdirected itself when exercising its discretion not to continue the interim order for non-publication of his name by applying criteria which were peculiarly relevant only to similar applications pursuant to s 140 of the Criminal Justice Act 1985.

[84] He submitted the Tribunal had failed to adequately distinguish between the higher public interest in “openness” in criminal hearings than is the case with civil hearings.

[85] This had led the Tribunal to pay insufficient regard to the appellant’s circumstances when balancing these against the public interest. The Judge in turn had then failed to adequately address this distinction.

[86] The Tribunal’s findings on this issue were:

“4.20 FINALLY in this regard, whilst the decision whether or not to grant or maintain name suppression is entirely discretionary, the Tribunal is bound to apply the relevant provisions of the Act. Section 106(1) requires that hearings of the Tribunal shall be heard in public. The consideration of the application for permanent name suppression requires a balancing of F’s interests, as explained in the submissions, together with those of Mr and Mrs Waenga’s (and any other person), and the public interest.

4.21 THE Tribunal must therefore endeavour to balance the competing interests of those persons referred to, and the public generally. The nature of this latter interest has been discussed now in a number of cases in the Tribunal, the District Court and the High Court. In general terms, it has been descried as residing in the principle of open justice, the public’s expectation of the accountability and transparency of the disciplinary process, the public confidence in the medical profession, the importance of freedom of speech and the media’s right to report court proceedings fairly of interest to the public.

4.22 AS the Tribunal has stated on similar occasions, Parliament clearly intended that proceedings of the Tribunal should be conducted in the public domain so that the public can have confidence in the integrity of the professional disciplinary process.

4.23 TAKING into account all of the factors comprising ‘the public interest’ it is implicit that members of the public are entitled to receive information that might fairly and reasonably be considered relevant about their doctor, or any practitioner who might become their doctor, or whom they might be considering consulting for private, specialist care; that especially includes information that arises in the professional domain or about a practitioner’s professional practice, unless the Tribunal is satisfied, in the particular circumstances of each case, that the practitioner’s private interests outweigh the public interest and such information ought not to be disclosed.

4.24 ON balance, and after taking into account all of the submissions made to it, and the nature of its adverse findings against F, the Tribunal is satisfied in this case that the public interest, encompassing as it does all of the factors referred to above, outweighs F’s private and professional interests in maintaining suppression of his name from the public domain.”

[87] The Judge addressed this issue. He noted in paragraph 12 of his decision the appellant’s submissions that the appellant’s privacy interests are greater than the public interest and displace the presumption in favour of a public hearing.

[88] He went on to consider the principles which applied to the issue of non publication. These were recently restated in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 C.A. at paras 41 to 43 as follows:

“[41] In R v Liddell [1995] 1 NZLR 538 at pp 546 - 547 this Court declined to lay down any code to govern the exercise of a discretion conferred by Parliament in terms which are unfettered by any legislative prescription. But it recognised that the starting point must always be the importance of freedom of speech recognised by s 14 of the New Zealand Bill of Rights Act 1990, the importance of open judicial proceedings, and the right of the media to report Court proceedings:

“What has to be stressed is that the prima facie presumption as to reporting is always in favour of openness.”

[42] Factors it is usual to take into account in deciding whether the prima facie presumption should be displaced in the case include:

• whether the person whose name is suppressed is acquitted or convicted. If acquitted, the Court may more readily apply the power to prohibit publication, although in R v Liddell the Court recognised (in adoption of R v D(G) (1991) 63 CCC (3d) 134) that the public has an interest in acquittals also;

• the seriousness of the offending. Where a person is convicted of a serious crime it will only be in rare cases that name suppression will be ordered. Where the charge is “truly trivial”, particular damage caused by publicity may outweigh any real public interest (R v Liddell at p 547);

• adverse impact upon the prospects for rehabilitation of a person convicted: see, for example B v B (High Court, Auckland, HC 4/92, 6 April 1993, Blanchard J);

• the public interest in knowing the character of the person seeking name suppression, an interest which has been acknowledged in cases involving sexual offending, dishonesty, and drug use (see, for example, R v Liddell; M v Police (1991) 8 CRNZ 14; Roberts v Police (1989) 4 CRNZ 429); and

• circumstances personal to the person appearing before the Court, his family, or those who work with him and impact upon financial and professional interests. As it is usual for distress, embarrassment, and adverse personal and financial consequences to attend criminal proceedings, some damage out of the ordinary and disproportionate to the public interest in open justice in the particular case is required to displace the presumption in favour of reporting.

[43] The Judge must identify and weigh the interests, public and private, which are relevant in the particular case. It will be necessary to confront the principle of open justice and on what basis it should yield. And since the Judge is required by s 3 to apply the New Zealand Bill of Rights Act 1990, it will be necessary for the Judge to consider whether in the circumstances the order prohibiting publication under s 140 is a reasonable limitation upon the s 14 right to receive and impart information such as can be demonstrably justified in a free and democratic society (the test provided by s 5). Given the congruence of these important considerations, the balance must come down clearly in favour of suppression if the prima facie presumption in favour of open reporting is to be overcome.”

[89] The Judge then specifically acknowledged that these matters arose in the context of a criminal case. Notwithstanding this he concluded they nevertheless reflected the recent trend of cases decided concerning suppression of name under the new Act.

[90] He then referred specifically to S v Wellington District Law Society [2001] NZAR 465 and summarised the principles stated there as follows:

“1. The public interest referred to is the interest of the public, including members of the profession, who have a right to know about proceedings affecting a practitioner. The interests of any person, includes the interests of the practitioner being disciplined.

2. The proceedings before a disciplinary tribunal are not criminal proceedings. Nor are they punitive. Their purpose is to protect the public and the profession.

3. In considering the public interest the Tribunal requires to consider the extent to which publication of the proceedings would provide some degree of protection to the public or the profession. It is the public interest in that sense that must be weighed against the interests of other persons, including the appellant, when exercising the discretion whether or not to prohibit publication.

4. The exercise of the discretion should not be fettered by laying down any code or criteria, other than the general approach dictated by the statute.

5. The issue will generally be determined by considering whether the presumption in favour of publication, in all circumstances of the case, is outweighed by the interests of the appellant or the public interest.

6. Often the answer to that question will be to consider if the interests of the public, including the profession, will be adequately protected if a suppression order is made. In many cases the issue is whether or not the balance is in favour of protecting the public by means of publication, as against the interests of the appellant in carrying on his profession uninhibited by any adverse publicity.”

[91] He then went on to note the observations in A v Medical Council of New Zealand (HC.13/98, Auckland High Court, 15 June 1999) where Randerson J. referred to the need to balance two important competing interests: the first was the public interest in the freedom of information and the second was the legitimate privacy interest of the practitioner.

[92] He then considered the Tribunal’s findings and concluded at paragraph [39] -

“[39] The Tribunal clearly considered the balance of the public interest as against the private interests of the appellant. In considering this balance, the Tribunal weighed the gravity of the conduct that it found proved. Being a specialist Tribunal, on that issue, it was ideally placed to measure the public interest to be protected. On the other hand, again, being a specialist Tribunal, it would be sensitive to the private interests of the appellant. The decision of the Tribunal reflects that sensitivity, and again, shows that it carefully weighed the balance of these two competing interests. In its opinion the Tribunal came to the view that it was necessary for the public interest that the name of the appellant should be published. I have read all of the materials put before me and I conclude that the decision made by the Tribunal was exercised after a careful consideration of the competing interests.”

[93] In the end result, both the Tribunal and the Judge accepted that the principles referred to in Lewis were applicable to the present case. The question remains whether there is, nevertheless, a fundamental distinction which should be noted before they are applied in cases involving professional discipline under the new Act.

[94] In my view there is such a fundamental distinction, but on closer examination the impact of thus is likely to be more apparent rather than real.

[95] The discretion in relation to non-publication of name as stated in both s 106 of the new Act and s 140 of the Criminal Justice Act 1985 are, in practical terms, the same, i.e.

“106. Hearings of Tribunal to be in public

(2) Where the Tribunal is satisfied that it is desirable to do so, after having regard to the interests of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any one or more of the following orders:

(a) . . .

(b) . . .

(c) . . .

(d) Subject to subsection (7) of this section, an order prohibiting the publication of the name, or any particulars of the affairs, of any person.”

“140. Court may prohibit publication of names - (1) Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification.

(2) Any such order may be made to have effect only for a limited period, whether fixed in the order or to terminate in accordance with the order; or if it is not so made, it shall have effect permanently.

(3) If any such order is expressed to have effect until the determination of an intended appeal, and no notice of appeal or of application for leave to appeal is filed or given within the time limited or allowed by or under the relevant enactment, the order shall cease to have effect on the expiry of that time; but if such a notice is given within that time, the order shall cease to have effect on the determination of the appeal or on the occurrence or non-occurrence of any event as a result of which the proceedings or prospective proceedings are brought to an end.

(4) The making under this section of an order having effect only for a limited period shall not prevent any court from making under this section any further order having effect either for a limited period or permanently.

(5) Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who commits a breach of any order made under this section or evades or attempts to evade any such order.”

[96] The words:

“After having regard to the interests of any person (including . . . public interest . . .”

clearly identify a particular context, namely a disciplinary proceeding under the new Act, as opposed to the general situation applying under s 140 of the Criminal Justice Act.

[97] Given the particular context under the new Act, when considering the “interests of any person” there can be no doubt that this includes the interests of the practitioner concerned.

[98] Those interests include a recognition that the charges brought against the practitioner may be found to be unfounded or so trivial that a finding of misconduct is not warranted. In such a case the practitioner will continue to practise. Therefore it is reasonable that the right to practise should not be prejudiced by the practitioner identified in relation to allegations which do not, at the end of the day, have any bearing on his or her ability to do so.

[99] Therefore pending determination of the charges it will usually be quite reasonable in most cases to make interim orders for non-publication of name.

[100] Even this proposition has to be considered carefully.

[101] The practice of medicine is a difficult one calling for the exercise of judgment at a high level. It is conducted in the context of the provision of services to lay people, often under very real emotional stress. The possibility of unwarranted allegations against practitioners is therefore a reality. However, the procedure in relation to complaints envisages and takes into account this possibility.

[102] Just as in the vast majority of criminal prosecutions the conduct of the complaint is not left to the complainant. The complaint is, under the new Act, referred to C.A.C. for investigation and final decision as to whether a complaint will proceed. If it does, it is then prosecuted by that body. In other words the complaint, as with a criminal prosecution, does not proceed unless an independent body has first decided there is a prima facie case.

[103] The similarity as to procedure does not end there. In both cases the underlying purpose is the protection of the public. Both proceedings are, or can be, punitive. The new Act specifically provides for the imposition of a penalty under s 110.

[104] The result is that following investigation a position may be revealed which is, on the face of it, so serious that in the public interest it should be known to the public even before the matter is finally determined. I suspect, however, that in the majority of cases interim suppression will be justified.

[105] When, however, there is a finding of misconduct a quite different situation emerges:

[a] The finding implies that the conduct was not trivial and does reflect adversely on the fitness to practise; and hence

[b] The conduct is such that it requires a response for the purpose of protecting the public because it reflects on the fitness to practise.

[106] As part of that response, which can include a monetary penalty, the Tribunal is required to assess the question of name publication.

[107] It is at this point that the considerations relevant to the exercise of that discretion merge with those which are relevant pursuant to s 40 of the Criminal Justice Act, i.e.

[a] There has been an independently investigated and prosecuted complaint;

[b] In both cases the underlying purpose is the protection of the public;

[c] In both cases the response can be punitive.

[d] In both cases, any need to protect the complainant can be met by separate orders protecting solely the complainant’s identity.

Putting aside the last matter the Tribunal is ultimately left with having to decide whether the practitioner’s name should or should not be published when there has been a finding that he or she has acted in a manner which reflects adversely on the practitioner’s fitness to practise medicine.

[108] The Courts have made it quite clear in the criminal context that the expectation will, at least, strongly favour publication.

[109] In my view, given the clear legislative intent now evident in the Act since 1995, once a “conviction” has resulted under the Act the same considerations apply.

[110] This is precisely the view adopted by the Tribunal in this case. It was addressed by the Judge who concluded on appeal that the Tribunal was correct. I agree.

[111] Accordingly in my opinion the answer to Question 3 must again be “yes”.

[112] Question [d]

Whether the District Court Judge erred in finding that the Tribunal had, as a matter of law, exercised its discretion correctly pursuant to s 106(2), namely when deciding not to continue the interim order preventing publication of the appellant’s name?

[113] This question invites a complete review of the Tribunal’s decision. Given the content of the particular matters addressed in relation to Questions [a] and [c] I do not intend to do so. Those matters included all the points specifically addressed by he appellant as amounting to errors on the part of the Judge. Having examined them in detail I am satisfied the Judge addressed each of them appropriately and adequately. It follows that he did not err in his decision when he confirmed that the Tribunal exercised its discretion correctly in accordance with the law.

[114] Accordingly, in my opinion, the answer to Question [d] is also “Yes”.

Summary & Conclusion

[115] The issues raised in this appeal by way of case stated highlight important changes introduced by the Medical Practitioners Act 1995.

[116] Least there had been any doubt previously, the Legislature made it quite clear that the over-riding purpose of this Act was to provide protection for the public. Consistent with this objective it also recognised the need to protect the legitimate interests of medical practitioners whose practices require the exercise of a high level of professional judgment and skill in areas of considerable controversy and sensitivity.

[117] To achieve both these ends the new Act provides a number of safeguards. First, that all complaints are to be investigated and, if appropriate, prosecuted by an independent body. Secondly, a discretion as to whether the names of any persons involved, including the medical practitioner, should not be published. Thirdly, a statutory definition of the term “conduct unbecoming”, which imposes a threshold namely conduct which reflects adversely on the practitioner’s fitness to practise medicine.

[118] Within the context of these considerations the new Act has then clearly indicated that proceedings are to be attended by openness because this factor is, by itself, recognised as providing a significant element of protection to the public.

[119] In the present case the appellant disputed that the learned District Court Judge had, on appeal, adequately or appropriately reviewed the findings of the Medical Practitioners’ Disciplinary Tribunal when it exercised its discretion to not continue an interim order for the non-publication of the appellant’s name.

[120] The fundamental finding of the Tribunal giving rise to this order, was an undisputed finding that the appellant had made a serious error of judgment, such that it had reflected on his fitness to practise medicine. Accordingly, in order for the public to be protected, knowledge of this fact was required in order to enable the public thereafter to make an informed choice.

[121] Having considered all the submissions made to me, I have concluded the learned District Court Judge did not err in relation to the matters raised in the four questions posted in the case stated. In particular:-

Question (a)

(i) He did correctly identify the nature of the discretion to be exercised by the Tribunal pursuant to s 106(2) of the Act.

(ii) He correctly considered those requirements in accordance with the appropriate legal rules.

Question (b)

He correctly determined the legal significance of the particular order in the context of a requirement under the Act that hearings should prima facie be in public.

Question (c)

He correctly identified the principles which should be taken into account when addressing the issue of public interest.

Question (d)

He correctly determined, as a matter of law, that the Tribunal had correctly exercised its discretion pursuant to s 106(2) of the Act.

[122] Having concluded that the answer to all four questions should be “yes”, it follows that this appeal by way of case stated is dismissed.

[123] No submissions were made to me on the question of costs. However, I was advised by counsel that this is the first case stated on appeal to this Court under the new Act. I am not entirely clear on the point, but suspect that there is, accordingly, some element of appeal which can justify it being regarded as a test case. This being the case I am minded not to make any order for costs. In case I have misjudged the position in this regard I reserve leave to the respondent to file and serve a memorandum within 14 days from today. If a memorandum is filed the appellant is to have a further 14 days in which to file and serve a memorandum in reply.