Fernando v Professional Conduct Committee
[2017] NZHC 1028
•18 May 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000976 [2017] NZHC 1028
IN THE MATTER of an appeal pursuant to s 106 of the
Health Practitioners Competence
Assurance Act 2003BETWEEN
HIRRON FERNANDO Appellant
AND
PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 8 May 2017 Appearances:
N Levy for Appellant
J C Hughson and A M Hall for RespondentJudgment:
18 May 2017
JUDGMENT OF FAIRE J
This judgment was delivered by Justice Faire on 18 May 2017 at 2.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Ord Legal, Wellington
Counsel: N Levy, Wellington
J C Hughson, Wellington
Copy for: Medical Council of New Zealand, Wellington
HIRRON FERNANDO v PROFESSIONAL CONDUCT COMMITTEE [2017] NZHC 1028 [18 May 2017]
The appeal
[1] The appellant appeals pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003 (HPCA Act) against the decision of the New Zealand Health Practitioners Disciplinary Tribunal (Tribunal) dated
11 November 2016. Pursuant to s 101 of the HPCA Act, the Tribunal censured the appellant, cancelled his registration and ordered the appellant to pay costs.
The grounds of the appeal
[2] Counsel for the appellant advised that the appeal would proceed on the first pleaded ground only. The other grounds were abandoned. As a consequence, the sole ground relied upon is that the Tribunal had no jurisdiction to make the orders which it made. That jurisdictional bar is said to arise from the fact that the appellant was not a resident in New Zealand at the time of the alleged offences, nor has he been in New Zealand since and, more particularly, he was not in New Zealand at the time the charges which are the subject of this matter were laid.
The charges
[3] The respondent, the Professional Conduct Committee was appointed by the Medical Council of New Zealand pursuant to s 71 of the HPCA Act. The Committee issued a notice dated 18 April 2016 charging the appellant with professional misconduct pursuant to s 100(1)(a) and/or (b) of the HPCA Act, which provide:
100 Grounds on which health practitioner may be disciplined
(1) The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was
likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
[4] The notice of charge particularised the charge of professional misconduct in these terms:
Particulars
Capital & Coast District Health Board
1.On or around 11 March 2014 and/or in May 2014 Dr Fernando telephoned Wellington Hospital, Capital & Coast District Health Board (“CCDHB”) and requested health information and/or medical records for a patient ([Patient A]) whom Dr Fernando falsely claimed he was treating in a hospital in the United Kingdom, when he knew [Patient A] was not a patient and that he was not treating her ...; and/or
2.On or about 24 November 2014 and 25 November 2014, Dr Fernando telephoned Wellington Hospital, CCDHB, falsely claiming that he was treating [Patient A] and requested health information and/or medical records about [Patient A] including [details suppressed] and [details suppressed] …; and/or
3.On 25 November 2014, Dr Fernando fraudulently and/or inappropriately obtained details of [Patient A’s] medical history from CCDHB without [Patient A’s] knowledge or consent and/or in breach of [Patient A’s] right to confidentiality; and/or
Hawkes Bay District Health Board
4.On or about 25 November 2014, Dr Fernando telephoned and/or emailed Hawkes Bay District Health Board (“HBDHB”) and requested health information and/or records for a patient [Patient B] knowing [Patient B] was not a patient of his and/or that he was not treating [Patient B]; and/or
5.On or about 25 November 2014, Dr Fernando fraudulently and/or inappropriately obtained [Patient B’s] health information in the form of [detailed suppressed] … from the HBDHB without [Patient B’s] knowledge or consent and/or in breach of [Patient B’s] right to confidentiality; and/or
6.Without the consent of [Patient A] and/or [Patient B] produced the fraudulently and/or inappropriately obtained [Patient A’s] and/or [Patient B’s] health information to a Court in the United Kingdom for his own private purpose, more particularly [details suppressed].
The conduct alleged and as further particularised in particulars 1 to 6 individually, and/or when one or more of the further particulars is considered cumulatively amounts to professional misconduct under section 100(1)(a) and/or (b) of the Act.
[5] Although the above matters are not relevant to this appeal, they are recorded to give some context to the central issue which has been raised by the appeal.
Factual background
[6] For the purpose of analysing the jurisdictional challenge, the relevant facts can be shortly stated. The Medical Council is the statutory organisation responsible for registering doctors and issuing practising certificates. The Medical Council also manages processes for addressing competence, conduct, and health issues arising in a doctor’s practice. The Medical Council operates under the HPCA Act.
[7] The Medical Council is responsible for all decisions on whether or not an applicant is eligible for, and obtains, registration as a medical professional in New Zealand. In appropriate cases the Medical Council will register an applicant in one or more scopes of practice.
[8] In 2000, the appellant obtained an MB BS from the University of West Indies
(Trinidad and Tobago). He was registered as a New Zealand medical practitioner on
28 December 2006 in the provisional general scope of practice.
[9] He is still currently registered to practice medicine in New Zealand. He was issued a practising certificate on 1 June 2007. He has not held a practising certificate since 9 December 2007. It is understood that he left New Zealand before December 2009 and has not returned, at least not to live or work.
[10] As in a strike out application, the normal position is that pleaded facts, whether or not admitted, are assumed to be true.1 Accordingly, I take account of the matters pleaded in the charges referred to in [4].
[11] The issue was first raised by the appellant when he filed an application dated
27 July 2016, seeking an order to strike out the charge. The first ground alleged in that application was that the Tribunal did not have jurisdiction to deal with the
1 Attorney-General v Prince [1998] 1 NZLR 262 (CA) endorsed by the Supreme Court in Couch v
Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
charges. The Tribunal issued its decision on that interlocutory application on
19 August 2016. It dismissed the application.
[12] The hearing before the Tribunal of the charges on the merits took place on
19 September 2016. The appellant did not take part. The Tribunal proceeded with the hearing, it analysed the evidence that was produced to it, and then issued a written decision as I have already indicated.
The appellant’s submissions
[13] Ms Levy, for the appellant, submitted that the Tribunal has no jurisdiction in respect of the appellant because he was not in New Zealand. She referred to the Laws of New Zealand “Statutes” title, at [85], [86] and [87], which details the territorial jurisdiction of enactments.
[14] Ms Levy also referred to a number of case authorities, none of which dealt with a case where the party charged had voluntarily registered himself in the country of the Tribunal pursuant to a particular piece of legislation and thereby, first, obtained the benefit of a registration and, second, subjected himself to the duties and responsibilities which registration entails.
[15] She then examined the HPCA Act with a view to seeing if the legislation itself made any provision to deal with registered persons who were no longer physically in the country. She noted that the principal purpose of the HPCA Act was to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practice their profession. She submitted that could only be a reference to the New Zealand public and health practitioners practising or intending to practice in New Zealand. She submitted on that basis there was nothing to support an interpretation which gave an extra territorial reach to the enforcement provisions which are to be the subject of determinations by the Tribunal.
The respondent’s submissions
[16] Ms Hughson, for the respondents, submitted that the Tribunal had jurisdiction because the appellant was a New Zealand registered medical practitioner, both at the time of the established conduct and at the time of the substantive hearing, and that the conduct occurred at least partly in New Zealand. She further submitted that the finding of professional misconduct was made within the Tribunal’s jurisdiction under s 100 of the HPCA Act and the penalty orders made were within the Tribunal’s discretion under s 106 of the HPCA Act.
[17] Ms Hughson submitted that the Court has no jurisdiction and/or is estopped from rehearing the issue of the Tribunal’s jurisdiction because of the order made on the interlocutory application. No authority, however, was provided for that submission. Whilst the submission would have had validity if the determination had
been a final judgment, it would not apply to an interlocutory application.2
Analysis
[18] In my view, the appellant is entitled to choose between available avenues by which the decision can be challenged. The fact that the appellant elected to appeal the Tribunal’s final decision, rather than pursue judicial review of the interlocutory decision, does not constitute an abuse of process. This position is not undermined by the fact that the grounds of appeal go not to the substance of the final decision, but to the jurisdiction the Tribunal relied on in making that decision. Nor is it undermined merely by the fact that the appeal effectively repeats arguments rejected in the interlocutory decision.
[19] Having said that, I do not accept that the Tribunal lacks jurisdiction to make the decision it did.
[20] The Tribunal has jurisdiction to hear and determine charges brought against health practitioners.3 A health practitioner is defined in the HPCA Act as a person
who is registered with an authority of a particular health profession.4 A person is not
2 Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [58].
3 Health Practitioners Competence Assurance Act 2003, s 85.
4 Section 5(1), “Definition of Health Practitioner”.
required to have a current practising certificate for the charges to be brought against them.5 Such a requirement would conflict with the Tribunal’s jurisdiction to hear and determine charges against a health practitioner who practises without a certificate.6 At all material times the appellant was a health practitioner registered in New Zealand. He therefore submitted to the jurisdiction of the Tribunal by choosing to register in New Zealand.
[21] I am satisfied the Tribunal had jurisdiction to consider the conduct complained of. The conduct, that is obtaining private medical information of New Zealand patients by telephone and email, took place partly in New Zealand. The grounds on which health practitioners may be disciplined are not expressly restricted to conduct carried out in New Zealand.
[22] Whether a statute has extra-territorial effect is a matter of interpretation.7
[23] The primary purpose of the HPCA Act is to protect members of the New Zealand public. The purpose of the disciplinary regime is to maintain professional standards. As a matter of principle, that includes relevant conduct occurring at least partially in other countries. To claim otherwise risks undermining the effectiveness of the protective purpose of the HPCA Act and its disciplinary regime.
[24] The fact that the appellant may also face disciplinary proceedings in another country does not preclude the Tribunal’s jurisdiction. Those other proceedings cannot fulfil the purpose of the HPCA Act.
[25] I am satisfied that the fact that the appellant was or remains outside New Zealand does not displace jurisdiction. The Tribunal’s jurisdiction is not predicated on the location of the health practitioner. Its jurisdiction is concerned with whether or not the practitioner is registered in New Zealand. Any other finding
would frustrate the purpose of the HPCA Act. The appellant enjoyed the benefits of
5 G v Professional Conduct Committee of the Psychologists Board [2009] NZCA 274, [2009] NZAR 563 at [4]-[5].
6 Section 100(1)(c).
7 Re Seagull Manufacturing Co Ltd [1993] Ch 345, [1993] All ER 980 (CA).
registration in New Zealand. In doing so, he submitted himself to the jurisdiction of the disciplinary regime. Unlike criminal sanctions, enforceability issues do not arise. The penalties imposed, including deregistration, can take effect notwithstanding the fact that the appellant currently resides in another country.
Result
[26] The appeal against the Tribunal’s decision based on jurisdictional grounds is accordingly dismissed.
Costs
[27] Ms Hughson requested costs for the respondent on an indemnity basis. I am not satisfied that the provisions of r 14.6(4) of the High Court Rules apply. The respondent is, however, entitled to costs on a 2B basis. If counsel cannot agree on the application of category 2 band B to this case, memoranda in support, opposition and reply shall be filed and served at seven-day intervals. On receipt of the reply memoranda, the file shall be referred to me, or to another Judge in my absence, for conclusion of costs.
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