Johns v Director of Proceedings
[2017] NZHC 2843
•20 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-000549
[2017] NZHC 2843
BETWEEN STEPHEN LEONARD JOHNS
Appellant
AND
THE DIRECTOR OF PROCEEDINGS
Respondent
CIV-2017-404-002701 BETWEEN
THE DIRECTOR OF PROCEEDINGS
AppellantAND
STEPHEN LEONARD JOHNS
Respondent
Hearing: 24 July 2017 Appearances:
Hannah Stuart for the Appellant/Respondent
Nicola Wills and Jane Herschell for the Respondent/Appellant
Judgment:
20 November 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 20 November 2017 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
JOHNS v THE DIRECTOR OF PROCEEDINGS [2017] NZHC 2843 [20 November 2017]
Contents
Paragraph Number
Introduction.............................................................................................................. [1]
Background.............................................................................................................. [7]
The charges............................................................................................................ [37]
Tribunal decision
The decisions........................................................................................................ [41]
Liability hearing.................................................................................................. [45]
Penalty hearing.................................................................................................... [55]
Name suppression................................................................................................ [63]
The appeals – the liability decision....................................................................... [65]
Approach on appeal............................................................................................... [68]
Liability – professional misconduct principles.................................................... [73]
Discussion
What is the test for professional misconduct?..................................................... [78]
Dr Johns’ complaints on appeal.......................................................................... [88]
The evidence........................................................................................................ [89]
(a)Did the Tribunal fail to adequately consider environmental factors?..... [105]
(b)Did the Tribunal take into account irrelevant factors?............................ [124]
(c)Did the Tribunal fail to consider the purposes of the Act?..................... [133]
(d)Did the Tribunal err in its reference to punishment in the “threshold
inquiry”?.................................................................................................. [143]
Suppression appeal
Introduction........................................................................................................ [150]
A précis of the argument on appeal................................................................... [155]
Approach on appeal........................................................................................... [159]
Name suppression – legal principles................................................................. [160]
Was the Tribunal wrong to focus on name suppression being
“unduly punitive”?............................................................................................ [180]
Did the Tribunal err in considering Dr Johns’ mother’s health?....................... [184]
Did the Tribunal err in determining that while Dr Johns’ professional misconduct was serious it was still safe for him to practice and that any
public safety concerns were limited?................................................................. [193]
Was the Tribunal wrong to find the consequences of publication would be
unduly punitive?................................................................................................. [211]
Did the Tribunal err in not having regard to, or sufficient regard to, the
principles of accountability, transparency and freedom of expression?............ [217]
Was the Tribunal wrong in its assessment of the risk of unfairly impugning
other doctors?.................................................................................................... [221]
Did the Tribunal err in failing to consider the seriousness of the breach?....... [226]
Final assessment................................................................................................ [229]
Result.................................................................................................................... [234]
Costs...................................................................................................................... [236]
Introduction
[1] Late in the evening of Saturday, 15 October 2011 a baby boy (“Baby H”) was delivered stillborn at the North Shore Hospital (“the hospital).
[2] The senior consultant obstetrician responsible for the care of Baby H and his mother was Dr Johns, a senior consultant who has practised in the field of obstetrics and gynaecology since 1981.
[3] The events which led to this tragic outcome started two and a half days earlier, on the morning of Thursday, 13 October 2011, when the mother, Ms T, was admitted to the hospital following the spontaneous rupture of her membranes.
[4] It is the scrutiny of Dr Johns’ conduct over a period of well under an hour which lies at the centre of this case. Before the New Zealand Health Practitioners Disciplinary Tribunal (“the Tribunal”) Dr Johns accepted he made an error of clinical judgement in delaying the decision to proceed to an emergency caesarean section. Dr Johns also accepted that he failed to adequately communicate with Ms T and her husband. However, he defended the charges on the basis that the high threshold for an adverse disciplinary finding had not been met for a variety of reasons which included his level of exhaustion at the time, the limited period of his involvement, that other medical staff failed to respond appropriately and that any breach of professional standards was an isolated event and certainly not deliberate or ill-intended.
[5] The Tribunal found Dr Johns guilty of professional misconduct.1 It censured him, fined him and placed conditions on his future ability to practice. It also made a permanent order suppressing his name.2
1 Director of Proceedings v Johns MPDT 809/MED 15/318D, 16 May 2016.
2 Director of Proceedings v Johns MPDT 850/MED 15/318D, 27 September 2016.
[6] Dr Johns appeals the Tribunal’s findings that his conduct amounted to professional misconduct. The Director of Proceedings (“the Director”) cross-appeals against the Tribunal’s decision to permanently suppress Dr Johns’ name.
Background
[7]The factual background is not, in any material respects, disputed.
[8] The account begins when Ms T, at 37.5 weeks gestation, arrived at the hospital early on Thursday, 13 October 2011 after her waters broke. Baby H was her fifth child. For a number of reasons she presented as high risk. These included her age of 45 years, her pre-term rupture, her weight, a previous splenectomy3 and a history of anxiety and depression. Dr Johns had not been involved in any aspect of Ms T’s ante- natal care. Nor was he involved at any stage with her care at the hospital throughout the first two days after her admission.
[9] In order to properly understand the context in which Dr Johns’ conduct is to be examined it is necessary to summarise not only the events of the three days which preceded Baby H’s birth but also the relevant obstetric and maternity guidelines which were in operation at the time. The standards for obstetric practice in New Zealand are governed by the Royal Australia and New Zealand College of Obstetricians and Gynaecologists (“RANZCOG”), Intrapartum Fetal Surveillance Clinical Guidelines 2006 and the Waitemata District Health Board’s (“WDHB”) policies relating to Fetal Assessment, Caesarean Section and Intrapartum Care (2010).
[10] The Tribunal’s decision sets out the classifications for fetal assessment by reference to both the RANZCOG and WDHB guidelines, which are similar. Central to these classifications is the fetal heart rate (“FHR”). The FHR is monitored through the use of a cardiotocograph (“CTG”). A CTG records the FHR by strapping a monitor onto the abdomen of the mother. The CTG is a mode of informing clinical judgement and is of particular importance in assessing the likelihood of fetal compromise. The Tribunal’s judgment describes four categories of fetal condition as assessed by
3 A surgical procedure to remove the spleen, an organ which plays an important role in the body’s immune system.
reference to the FHR and other related features. These range between normal to pathological. For ease of reference they are out in full from the Tribunal’s decision:4
“(a) Normal/reassuring: Baseline 110bpm – 160bpm, baseline vulnerability of 5-25 beats per minute (“bpm”), accelerations 15 bpm for 15 seconds, no decelerations.
(b)Suspicious/nonreassuring: Baseline 100-109bpm, absence of accelerations, early decelerations, variable decelerations without complicating features. These features are unlikely to be associated with significant fetal compromise when occurring in isolation.
(c)Abnormal: The following features may be associated with significant fetal compromise and require further action. The features are fetal tachycardia over 160bpm, reduced baseline variability, complicated variable or late decelerations or prolonged decelerations of greater than 90 seconds but less than 5 minutes.
(d)Pathological: The following features are very likely to be associated with significant fetal compromise and require immediate management including urgent delivery; namely bradycardia of less than 100bpm for more than 5 minutes.”
[11] Two further medical terms require explanation. If the FHR drops below the normal baseline between 110bpm and 160bpm a state of bradycardia is reached. Bradycardia simply means low heart rate.
[12] Another relevant expression is the name given to the process of taking a fetal blood sample. This is known as a “lactate”. A lactate may be taken for the purposes of determining the levels of oxygen in the fetus blood. Unsurprisingly, when blood oxygen levels are low this is a sign of fetal compromise. However, a lactate should not be undertaken where there is continuous evidence of fetal compromise. In those circumstances the delivery of the baby should be expedited.
[13] I now return to the chronology. Following her early morning admission on Thursday, 13 October 2011 Ms T was assessed and monitored. The plan for her care was formulated. This was to continue monitoring until Ms T went into labour. A CTG was taken which showed a normal/reassuring FHR trace. Mother and child appeared to be doing well enough for Ms T to be sent home mid-afternoon. She returned to the
4 Director of Proceedings v Johns, above n 1 at [15].
hospital later that evening. Still the FHR trace was normal. She was monitored overnight by her midwife.
[14] The following morning, Friday, 14 October 2011, Dr S was the consultant on duty between 8:00 am and 8:00 pm. In addition to his duties in the birthing suite he was also responsible for several maternity and gynaecology wards as well as any obstetric and gynaecology emergency admissions. Assisting him was the obstetric registrar, Dr Desai.
[15] It appears that Dr Johns had no involvement with Ms T that day. Dr Desai assessed her at 6:30 am. Labour had not commenced but there were no signs which gave rise to concerns. Later that afternoon, following a discussion between the midwives and the doctors, Ms T was administered Prostaglandin gel for the purpose of inducing labour through the softening and dilation of her cervix. Despite this, Ms T’s cervical dilation did not progress past 2 cms although she was experiencing mild contractions.
[16] The following morning, Saturday, 15 October 2011, Ms T’s condition had not noticeably changed.
[17] Dr Johns was again on duty. Not only was he the consultant on call, but due to staff shortages he agreed to act as the Obstetric Registrar for the shift between 8:00 am and 9:30 pm.
[18] Given the slow progress of Ms T’s induction the midwife team, consisting of Ms T’s midwife and the hospital midwives, commenced an infusion of Syntocinon. Syntocinon is another drug used to induce labour. This had been approved the previous day by Dr Desai as part of Ms T’s management plan.
[19] Early that afternoon Dr Johns visited the birthing suite. On the evidence it would seem that this was the first time he had dealt with Ms T personally. The patient notes indicate that he reviewed Ms T’s presentation and noted the FHR. A note, apparently recorded by the midwife, made mention of the trace revealing “fleeting dips … seen by [Dr Johns]”.
[20] By mid-afternoon the FHR baseline was recorded as being between 120 and 130bpm and it appeared that Ms T was “contracting well”. The dose of Syntocinon was increased.
[21] At 5:20 pm Ms T produced a show of blood. This was the second show, the first having occurred following Ms T’s admission the previous day. The evidence was that the presence of bleeding in labour is generally regarded as abnormal and worthy of further assessment. Ms T was checked by the charge nurse but Dr Johns was not called.
[22] At 5:50 pm the CTG recorded another “fleeting deceleration” to 95bpm followed by a quick recovery into the normal range. With dilation not exceeding 2 cms Ms T’s labour was showing little signs of progress.
[23] At 6:25 pm a third show of blood was noted. This was followed by two further FHR decelerations to 80 to 85bpm.
[24] Within the nursing and midwifery team there was some concern as to whether these FHR drops were genuine or a misleading artefact of a malfunctioning CTG caused by Ms T moving during her contractions. A mother’s movement can cause the electrodes to lose contact and, as a consequence, difficulty in determining whether the trace is recording the FHR or the maternal heart rate, the latter of which will be considerably lower in normal conditions. A more reliable mechanism for monitoring an FHR is to attach a fetal scalp electrode (“FSE”) to the baby’s head. However, as can be seen in the chronology which follows, that step was not taken until shortly after 9:00 pm.
[25] By 8:00 pm Ms T’s cervix had dilated to between 2 and 3 cm, consistent with still being in the early stages of labour. The CTG recorded an FHR of 80bpm followed by a loss of contact. Still uncertain as to whether the CTG was picking up the fetal or maternal heart rate, the device was adjusted and the FHR returned to between 120 and 130bpm leading the midwives to conclude that the 80bpm was, in fact, the maternal heart rate. Still Dr Johns was not called to discuss these issues.
[26] At 8:12 pm an epidural was administered to Ms T. This was followed, over the next 28 minutes, by further periods of loss of contact with the CTG and FHR decelerations. Each time Ms T’s position was changed. Each time the FHR returned to the normal range.
[27] At 8:30 pm there were two further decelerations. Ms T’s position was changed and the FHR again improved. Dr Johns was still not called to discuss the situation or to examine Ms T.
[28] At a point believed by the Tribunal to be between 8:30 pm and 8:55 pm Dr Johns confirmed with the charge midwife that there was no reason why he could not take a break. During his absence two further decelerations to 100bpm occurred. Again the FHR improved when Ms T’s position was changed. Unsurprisingly, the expert evidence heard by the Tribunal was that Dr Johns should have been called to assess the situation. He was not.
[29] In respect of a review of Dr Johns’ conduct it is the events which follow which assume central importance. This is the period between 9:05 pm and 9:58 pm.
[30] At 9:05 pm the charge midwife made the decision to attach an FSE due to the recurring difficulties in reading the CTG.
[31] At 9:07 pm the FSE recorded an FHR of 86bpm. Three minutes later this dropped to 60bpm. Recognising the significance of this development, despite both decelerations recovering to baseline, the charge midwife was called. The FHR then again dropped to 60bpm and did not recover beyond 80bpm.
[32] At 9:12 pm the senior midwife called Dr Johns who promptly attended three minutes later at 9:15 pm. He reviewed the CTG report. At this time the FHR was recorded at 60bpm. Dr Johns performed a vaginal examination and noted the cervix as 3 to 4 cms dilated and with the fetal head at “station +1”. Despite this presentation and the evidence of successive episodic fetal bradycardia Dr Johns was of the view that a vaginal delivery was still possible. He did not discuss his assessment with Ms T or her husband. He did not tell them about the FHR and what a prolonged and
successive bradycardia might indicate. Neither did he discuss delivery options, their preferences as to delivery options or the associated risks. This, despite him having just formed the view that a vaginal delivery was still, in the circumstances, possible. He expected Ms T to deliver vaginally. Dr Johns directed the staff to administer more intravenous fluids to Ms T. There was no discussion with attending staff as to Ms T’s management plan.
[33] At about 9:20 pm the charge midwife suggested to Dr Johns that a lactate should be obtained. Apparently this suggestion was made because she was surprised Dr Johns had not ordered a caesarean section. Dr Johns said that before taking a lactate he wished to discuss the situation with the duty registrar, Dr Chowdary, who was expected to arrive within the next 10 minutes or so. At about this time the FHR had improved slightly but was still sitting at only 100bpm. The FHR had been between 60bpm and 100bpm for 8 minutes, a recording which indicated a prolonged and serious fetal bradycardia.
[34] At about 9:30 pm Dr Johns performed a further vaginal examination. He recorded the cervix as “tight cm”. The head was recorded as being at Station 1.
[35] At about this time Dr Chowdary arrived and joined Dr Johns. By this point the bradycardia had persisted for some 20 minutes and the FHR range had been between 90bpm and 100bpm for about 15 minutes. Dr Chowdary told Dr Johns that an urgent caesarean section was required. Dr Johns demurred. He maintained that a lactate should be obtained. Dr Chowdary made it plain to Dr Johns that she disagreed with this decision. Despite this, Dr Johns remained resolute and at 9:38 pm Dr Chowdary took the lactate. The FHR remained at 95bpm.
[36] At 9:43 pm the lactate results were returned. These confirmed severe acidosis which is a consequence of low or depressed blood oxygen levels. At this point a “Code Red” caesarean section was called and Ms T was taken to theatre. Dr Johns promptly performed the caesarean section but Baby H was delivered stillborn at 9:58 pm. His death was found to be due to oxygen deprivation.
The charges
[37] As a result of these events the Director laid two charges of professional misconduct against Dr Johns under ss 91, 100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (“the Act”).
[38] The first charge, laid under s 100(1)(a) of the Act, alleged professional misconduct which amounted to negligence or misconduct in respect of Dr Johns’ acts and omissions in relation to Ms T’s obstetric care between 9:00 pm and 9:58 pm.
[39] The second charge, laid under s 100(1)(b) of the Act, alleged professional misconduct by act or omission which brought or was likely to bring discredit to the profession. This charge related to Dr Johns’ alleged failure to adequately communicate with Baby H’s parents during the 58 minute period after 9:00 pm.
[40]The charges are set out in full below:
“5.The Notice of Charge dated 31 August 2015, as amended prior to hearing, sets out the particulars of the charge faced by the practitioner:
“In particular:
1.When caring for your patient at North Shore Hospital between 2100hrs and 2158hrs on 15 October 2011, you failed to respond appropriately to a cardiotocograph that was abnormal and progressively pathological and/or by 21.12hrs indicated severe fetal compromise. In particular you:
(a)failed to decide to perform an emergency caesarean section in a timely manner;
and/or
(b)failed to appropriately respond to the concerns raised by the obstetric registrar at or around 2135hrs;
and/or
(c)further delayed taking appropriate action by electing to await the arrival of the obstetric registrar before collecting a fetal blood sample;
and/or
(d)decided to obtain a fetal blood sample when blood sampling was contraindicated.
2.When caring for your patient at North Shore Hospital between 2100hrs and 2158hrs on 15 October 2011, you failed to communicate adequately with your patient and/or your patient’s husband in that you:
(a)Failed to discuss a management plan for the progress of your patient’s labour with your patient and/or your patient’s husband including your intention to have the registrar perform a lactate.
(b)Failed to convey to your patient and/your patient’s husband options for the progress of her labour including proceeding to caesarean section, and/or instrumental delivery.
(c)Failed to ascertain your patient’s wishes regarding the progress of her labour.
The conduct alleged in the particulars above separately or cumulatively amounts to professional misconduct. The conduct is alleged to amount to malpractice and/or negligence and/or conduct that brings discredit to the medical profession under s 100(1)(a) and/or s 100(1)(b).”
Tribunal decision
The decisions
[41] The Tribunal made three separate determinations two of which are the subject of the present appeals. These are:
(a)the liability decision on whether the conduct alleged amounted to professional misconduct (Dr Johns’ appeal);
(b)penalty; and
(c)name suppression (Director’s appeal).
[42]Neither party appeals the Tribunal’s decision as to penalty.
[43] The Tribunal’s decision on liability was delivered on 16 May 2016. The decision on penalty and whether a permanent order suppressing Dr Johns’ name are both contained in a decision of the Tribunal dated 27 September 2016.
[44]My summary of both decisions follows.
Liability hearing
[45] After setting out the chronology, the Tribunal summarised the evidence of the witnesses who appeared before it. This included Ms T and her husband, the staff midwife, the charge midwife, Dr Chowdary, Dr Johns and three expert witnesses, all eminent obstetric and gynaecological consultants. The experts called by the Director were Mr Michael Sangalli and Mr Michael Beard. Mr Howard Clentworth was called on Dr Johns’ behalf. Each expert reviewed the circumstances which confronted Dr Johns on the evening of 15 October 2011. All agreed that his conduct fell below expected standards but disagreed on the extent of that departure.
[46] The Tribunal applied what it described as the “well established two stage test for determining professional misconduct”, namely an objective analysis of whether the practitioner’s acts or omissions could reasonably be regarded as constituting malpractice, negligence or otherwise bringing, or likely to bring, discredit to the profession; and secondly whether any such acts or omissions required disciplinary sanction for the purposes of protecting the public or maintaining professional standards or punishing the practitioner, often referred to as the “threshold test”.
[47] Given Dr Johns’ admissions and the correspondence of all experts’ opinions the Tribunal found the first limb of the test satisfied.
[48] As to the second or threshold limb on the first charge the Tribunal accepted the expert evidence that Dr Johns should have been called by the charge midwife to assess the patient earlier that evening and at the latest sometime between 8:45 pm and 9:04 pm, noting that it will remain unresolved whether calling Dr S earlier would have made a difference to his decision to await a vaginal delivery.
[49] The Tribunal accepted the evidence of Mr Beard that given Ms T’s elevated risk factors Dr Johns should have paid more attention to her from at least 2:15 pm on the Saturday. The Tribunal determined that as from that time Dr Johns had the necessary time and resources available to make the appropriate decisions and while midwives could certainly have called him in earlier, he was still in a position by 9:20
pm to have made his own assessment of the situation and ordered an urgent caesarean section.
[50] The Tribunal rejected the defence submission that the combination of Dr Johns being called in late to an emergency, his tiredness and hospital understaffing was sufficient to ameliorate his serious serial clinical failures such that a finding of professional misconduct should not be made.
[51] The Tribunal observed that it was satisfied, on the balance of probabilities, that as from 9:20 pm Dr Johns’ continuing failures were so seriously negligent that they fell well short of the range of acceptable standards for a medical practitioner in his position on that day. The errors were described as basic decision-making errors and were such serious acts of negligence that they could not be excused by the previous conduct of the midwifery staff, tiredness or under staffing because none of these factors was outside the expected range encountered from time to time, by senior consultants. They were all matters that a senior obstetric consultant is expected to overcome when making straightforward clinical decisions.
[52] The particular heads of negligence which the Tribunal found in combination justified the finding that Dr Johns’ conduct warranted disciplinary action were as follows:
(a)he failed to perform a lactate himself, instead waiting for a further 10 minutes for Dr Chowdary to arrive;
(b)he failed to call an immediate Code Red caesarean section, when Dr Chowdary arrived at 9:30 pm and advised him that this was needed urgently;
(c)he failed to alter his decision even after Dr Chowdary challenged him that performing the lactate was contraindicated; and
(d)he failed to discuss the options available with the patient and her husband as from 9:20 pm.
[53]The Tribunal concluded with the following:
“[149] The misconduct is so seriously negligent that, while not deliberate, it does unfortunately portray an indifference and abuse of the privileges that accompany registration as a medical practitioner. It is for this reason that [Dr Johns’] conduct warrants a disciplinary sanction.
[150] The Tribunal was satisfied that particulars 1 and 2, both separately and cumulatively amount to professional misconduct under s 100(1)(a) and s 100(1)(b) of the Act. The conduct established is both serious negligence and inevitably brings discredit to the medical profession.”
[54] The Tribunal found the charges of professional misconduct established and ordered the interim suppression of Dr Johns’ name until further order.
Penalty hearing
[55] In its decision on penalty dated 27 September 2016 the Tribunal undertook a comprehensive analysis of Dr Johns’ culpability including a detailed examination of the respective aggravating and mitigating factors engaged in the case.
[56] Although this aspect of the Tribunal’s decision is not the subject of appeal by either party, aspects of the Tribunal’s findings on penalty are directly relevant to its decision on Dr Johns’ application for permanent name suppression and in particular its assessment of the nature of Dr Johns’ lapse of clinical judgement. For that reason it is helpful to summarise the principal findings.
[57] The aggravating features identified by the Tribunal included Dr Johns’ serious and prolonged lapse in clinical decision-making and patient communication, noting that the events took place over some 29 minutes during which Dr Johns should have been able, within minutes, to assess the urgent need for a caesarean section and discuss that with the patient. This was particularly so having regard to Ms T’s presentation as a relatively high risk patient with a vulnerable, unborn child.
[58] By way of mitigation the Tribunal acknowledged that Dr Johns, at 66 years of age and having practised as a specialist in obstetrics and gynaecology since 1981, had enjoyed a lengthy and otherwise successful career. He had not been the subject of any previous disciplinary proceedings. The Tribunal recognised that the events of the evening of 15 October 2011 needed to be viewed in the context of a sustained period
of on-call work, covering double duties as both consultant and registrar, compounded by the failures of the senior midwife to engage Dr Johns at an earlier stage.
[59] The Tribunal also noted that Dr Johns had taken steps to rehabilitate himself as required by the Medical Council of New Zealand (“the Medical Council”) and has continued to practice in non-acute and surgical areas without further complaint for almost five years since the events in question. It was also noted that Dr Johns had shown an appropriate level of insight and remorse although his initial responses to the Medical Council and the Director may not have reflected this. Reference was also made to the positive character references provided to the Tribunal by Dr Johns’ professional peers.
[60] Significantly the Tribunal treated Dr Johns’ conduct as a one-off serious event in the course of a lengthy career but expressed reservations regarding Dr Johns’ clinical decision-making in acute obstetrics observing it was appropriate for him to undergo a rigorous cognitive function test to determine if there was any impairment which may have accounted for his lapse in acute decision-making.
[61] Taking into account the primary objectives of public safety and the maintenance of professional standards the Tribunal determined that any penalty imposed should provide room for rehabilitation and accordingly imposed the following penalties:
(a) censure;
(b) $7,000 fine;
(c)a requirement that Dr Johns undertake a full cognitive function assessment to determine if he is fit to return to acute obstetric practice; and
(d)a requirement that he comply with any educational programme required by the Medical Council.
[62] The Tribunal expressly declined to impose any period of suspension noting that it was evident Dr Johns had been practising without incident since the events and was satisfied there were no current public safety concerns justifying suspension.
Name suppression
[63] After reviewing the relevant statutory provision5 the Tribunal undertook a balancing exercise between the public interest considerations engaged and the interests of the practitioner or any other person. In terms of the latter Dr Johns sought suppression not only to prevent harm to his elderly mother’s health, but he also submitted that publication would have a disproportionately punitive impact on him having regard to the misconduct involved. Furthermore, he submitted that the public safety considerations had been addressed when the Medical Council suspended him from acute obstetric practice. He thus submitted he did not pose a risk to the public with the consequence there was little or nothing to be gained by publishing his name.
[64] In directing that Dr Johns’ name not be published, the Tribunal was satisfied there were reasonable private interest factors engaged which weighed in favour of suppression, particularly the health of Dr Johns’ elderly mother. The Tribunal noted that the conduct, while serious, did not warrant strike off or suspension and there was a real risk that publication of Dr Johns’ name would be unduly punitive because there was a real risk he might lose his employment.
The appeals – the liability decision
[65] I shall deal with the Tribunal’s liability decision and name suppression decision separately.
[66] Dr Johns submits that the Tribunal’s decision on liability was wrong in fact and law. He submits his breach of professional standards was not sufficiently serious to
5 Health Practitioners Competence Assurance Act 2003, s 95.
warrant a finding of professional misconduct. In particular, he submits that the Tribunal erred in the following ways:
(a)failed to adequately consider:
(i)the environmental factors (described by it as “external”) affecting Dr Johns’ decision-making abilities, including his hours of work; that he was undertaking “double duties” and that he was fatigued;
(ii)the involvement of other health practitioners including the midwives who were also responsible for the complainant’s care;
(iii)the one-off nature of the breach;
(iv)the requirement for the disciplinary threshold to be met before an adverse disciplinary finding be made;
(v)that the onus was on the respondent at all times;
(b)wrongly considered matters outside the disciplinary charge including:
(i)criticism of the appellant’s conduct from 2:15 pm on 15 October 2011; and
(ii)the failure of the midwifery staff to call the appellant earlier than 9:12 pm may not have made a difference to the outcome for the patient;
(c)wrongly directed itself not to consider, or to downplay, the impact of environmental (external) factors including those in (a) above; and
(d)overstated the seriousness of the breach of professional standards in light of the surrounding circumstances.
[67] Dr Johns seeks an order quashing the Tribunal’s finding of professional misconduct.
Approach on appeal
[68] Dr Johns’ appeal of the liability decision is brought pursuant to s 106(2)(a) of the Act. It is well settled and the parties agree, that such an appeal is by way of re- hearing.6
[69] As such the well-known principles in the Supreme Court’s decision of Austin, Nichols & Co Ltd v Stichting Lodestar apply.7 Both counsel addressed me on these principles. Ms Wills, for the Director, in her written submissions, complains that counsel for Dr Johns, Ms Stuart, has mischaracterised the principles in Austin, Nichols by submitting that the Court is required to re-hear the matter without paying attention to the reasons of the Tribunal. I did not understand Ms Stuart to be submitting as such. The principles are well settled and the relevant passages of Austin, Nichols on this point are well known. It is incumbent on the appellant to satisfy the appeal Court that it should differ from the decision under appeal. The weight an appellate Court gives to the original decision-maker’s conclusions is a matter for judgement in the particular case. This principle was neatly explained in Austin, Nichols:8
“The appeal Court may or may not find the reasoning of the Tribunal persuasive on its own terms. The Tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such an assessment is important). In such a case the appeal Court might rightly hesitate to conclude that its findings of fact or fact and degree are wrong.”
[70] For the appeal to be successful, it is incumbent on the appellant to satisfy this Court that it should differ from the Tribunal’s decision. However, while the Court is required to make its own assessment of the merits of the case it is entitled to adopt the reasons of the first instance decision-maker to assist in reaching a conclusion. Despite this the conclusion is one for the appellate Court to make and the weight which that
6 Health Practitioners Competence Assurance Act 2003, s 109(2).
7 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
8 Austin, Nichols & Co Ltd v Stichting Lodestar, above n 7, at [5].
Court places on the reasoning of the first instance tribunal or Court is a matter properly for the appellate Court.
[71] In the case of specialist tribunals such as the present, greater deference may be given to the tribunal’s decision but this will inevitably vary depending on the nature of the inquiry and the circumstances of the case, remembering at all times that it is for the appellate Court to make the ultimate decision. In the present case the five-person Tribunal was chaired by a lawyer sitting with three medical practitioners, being two general practitioners and an obstetrician. The fifth member was a lay representative.
[72] Both counsel referred me to the judgment of Elias J in the High Court where her Honour commented on the relationship between specialist disciplinary tribunals and the Court on appeal. In the context of a medical disciplinary case she said:9
“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 is 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 usual 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.”
Liability – professional misconduct principles
[73] Dr Johns was charged with professional misconduct under s 100(a) and/or (b) of the Act. Section 100 relevantly provides:
“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
9 B v Medical Council, noted at [2005] 3 NZLR 810 at 810-811.
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;”
[74] The term “professional misconduct” is not defined in the Act. Almost certainly this omission reflects the broad range of circumstances which may confront the Tribunal in any particular case. These may be so wide and variable that any attempt at prescription or attempt to capture conduct falling within the definition would be both unworkable and undesirable.
[75] For present purposes, there are two avenues via which professional misconduct may be found. The first is under s 100(1)(a) where a practitioner’s conduct amounts to malpractice or negligence.
[76] In a helpful and often quoted description of the term in the context of s 100(1)(a) Gendall J in Collie v Nursing Council observed:10
“Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is considered acceptable and not mere inadvertent error, oversight or for that matter carelessness.”
[77] Section 100(1)(b) creates another route by which a finding of professional misconduct may be made. This is where the practitioner’s conduct brings or is likely to bring discredit to the profession. In the same judgment, Gendall J considered the meaning of conduct likely to bring discredit on the medical profession under s 100(1)(b) of the Act, describing it in the following terms:
“[28] To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard with the question to be asked by the Council being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the reputation and good-standing of the nursing profession was lowered by the behaviour of the nurse concerned.”
10 Collie v Nursing Council [2001] NZAR 74 at [21].
Discussion
What is the test for professional misconduct?
[78] The well-established two-step test was set out by the Court of Appeal in F v Medical Practitioners Disciplinary Tribunal.11 These are:
(a)First, did the proven conduct of the medical practitioner fall short of the conduct expected of a reasonably competent medical practitioner operating in that vocational area?
(b)Secondly, if so, were the circumstances of that breach sufficiently significant to justify the imposition of a sanction?
[79] In the course of argument it seems that there was some divergence between the parties as to what the second step actually requires. Relying on New Zealand authority Ms Wills submits that the second step involves a straightforward assessment. The threshold is not unduly high but requires conduct which falls seriously short of that considered acceptable. Considerations of gravity and seriousness do not form part of this assessment. Those matters should be reflected in penalty.
[80] Ms Stuart presses for an interpretation more consistent with “misconduct in a professional respect” as discussed by Kirby J in Pillai v Messiter (No. 2).12 There the Judge observed that the statutory test requires a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which “accompany registration as a medical practitioner”.
[81] The passage relied on by Ms Stuart in Pillai needs to be viewed in its statutory context. Significantly, Kirby J’s discussion about the purpose of a professional misconduct finding was made in the context of considering the consequences of a finding of “misconduct in a professional respect” under the New South Wales Medical
11 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774.
12 Pillai v Messiter (No. 2) (1989) 16 NSWLR 197.
Practitioners Act 1938. Such a finding required the removal of the practitioner’s name from the medical register, a consequence rightly described by Kirby J as “drastic”.13
[82] I agree with Courtney J in Martin v Director of Proceedings that in the New Zealand paradigm this test is too onerous. She put it this way:14
“[30] In identifying the threshold for disciplinary sanction, it is essential to recognise that the assessment is one of degree. I have held that it would not be right to constrain the Tribunal’s assessment by reference to the criteria identified in Pillai v Messiter. Nor would it be right to identify some other specific criteria. To do so would risk impinging on the Tribunal’s exercise of its discretion in relation to penalty. In other words, the gravity of the misconduct should be reflected in the penalty rather than in the actual finding of professional misconduct. In comparison, under the previous schemes the gravity of the conduct was, to some extent, reflected in the charge itself.
[31] I consider the approach to the threshold issue described by the Court of Appeal in F v Medical Practitioners Disciplinary Tribunal is the correct approach under the HPCAA as well. The Court of Appeal, approving Elias J’s comments in B v Medical Council, expressed the threshold as being a straightforward assessment of whether the departure from acceptable standards has been significant enough to warrant sanction (notably, without reference to Pillai v Messiter); …”
[Footnotes omitted]
[83] As Courtney J observed, given the wider range of conduct which might attract sanction in this jurisdiction the threshold should not set unduly high. It is a threshold to be reached with care having regard to the purposes of the Act and the implications for the practitioner. Consistent with Ms Wills’ submission the measure of seriousness is to be reflected in penalty. Furthermore, as Courtney J noted, the task for the Tribunal must first be to consider whether the practitioner has departed from the acceptable standard required of a professional in the circumstances. What that standard is will be determined by reference to the conduct of other competent and responsible practitioners and the Tribunal’s own assessment of what is appropriate conduct assessed against the purposes of the Act. If the Tribunal is satisfied that the practitioner has departed from the standard expected it must then consider whether the departure is significant enough to warrant sanction.
13 Pillai v Messiter (No. 2) above n 12 at 201E.
14 Martin v Director of Proceedings [2010] NZAR 333 (HC).
[84] In my view this must be the correct approach. As Simon France J observed in Vatsyayann v Professional Conduct Committee in finding professional misconduct, something more than a breach of acceptable standards is required because otherwise there would be no need for the second step.15 It is also plain that the breach must be of sufficient significance to merit recording a finding of professional misconduct against the practitioner. I note, however, that not infrequently the resolution of whether the Martin formulation or the Pillai test is preferred will be unlikely to affect the outcome.
[85] So, while I agree that Martin is the correct approach, Ms Wills’ submission that considerations of gravity and seriousness do not form part of the threshold inquiry cannot be correct. Those considerations form part of the threshold inquiry but only to the extent required to ascertain whether the breach is of sufficient importance to merit recording a finding of professional misconduct against the practitioner. If the threshold is met, then a more rigorous examination of gravity and seriousness is required in the assessment of the appropriate penalty.
[86] These principles need to be viewed in the context of the purposes of the Act and the inevitable adverse consequences borne by the practitioner in the event of a finding of professional misconduct, the latter of which includes but is not limited to the inevitable stigma, if not opprobrium, of the practitioner’s professional peers.
[87] The principal purpose of the Act is to protect the health and safety of members of the public by providing mechanisms to ensure that health practitioners are competent and fit to practice.16 Disciplinary proceedings are one of the mechanisms designed to enhance that objective.17 The test for professional misconduct recognises the purpose of the Act in a broad context. I agree with Ms Wills when she submits that the protection of the public self-evidently requires more than eliminating or mitigating the risk of particular harm arising from the facts of a particular case. It also
15 Vatsyayann v Professional Conduct Committee HC Wellington CIV-2009-485-259, 14 August 2009.
16 Health Practitioners Competence Assurance Act 2003, s 3.
17 Professional Conduct Committee v Martin HC Wellington CIV-2006-485-1461, 27 February 2007 at [31].
necessarily incorporates holding practitioners to account in order to uphold and maintain professional standards in the wider protection of the public.
Dr Johns’ complaints on appeal
[88] Ms Stuart identifies four errors made by the Tribunal in determining that the threshold for an adverse disciplinary finding had been reached. The alleged errors are the findings that Dr Johns:
(a)failed to adequately consider the relevant “environmental” factors applying at the time of Dr Johns’ involvement;
(b)erroneously took into account irrelevant factors including the care provided to the patient earlier in the day on Saturday, 15 October 2011 and that earlier action by the midwifery staff might not have made a difference to the outcome;
(c)failed to consider the purposes of discipline; and
(d)wrongly factored punishment into the threshold inquiry.
The evidence
[89] Before considering each of these criticisms it is necessary to consider the evidence which the Tribunal relied on in making its findings.
[90] The essence of the Tribunal’s decision was that Dr Johns failed to respond appropriately to the CTG which revealed an abnormal FHR and prolonged fetal bradycardia indicating significant fetal compromise was very likely.
[91] The clinical parameters are explicitly set out in the RANZCOG guidelines. These stipulate that when these clinical features are present they “are very likely to be” associated with significant fetal compromise and require immediate management which may include urgent delivery.
[92] The CTG trace plainly revealed sustained bradycardia from 9:15 pm when Dr Johns appears to have first attended Ms T. In the case of a prolonged bradycardia the WDHB policies classify the CTG as “pathological”. All of the experts acknowledged that reading the CTG was a basic obstetric competency. Indeed, Dr Johns himself observed in evidence:
“As a previously experienced obstetrician, I would have expected any of my staff, junior staff, to have acted and performed a caesarean section at that stage and I didn’t which was the incorrect call.”
[93] Significantly, 15 minutes after Dr Johns first attended Ms T and read the CTG the bradycardia had not appreciably improved. This was when Dr Chowdary arrived and told Dr Johns that an urgency caesarean section was required. He ignored her.
[94] In relation to this period the Tribunal described what Dr Johns was confronted with in the following way:
“As from 9:15 pm that evening, [Dr Johns] had the necessary time and resources available to make appropriate decisions. All the experts agreed, while the midwives certainly could have called [Dr Johns] earlier in the evening, he was still in a position by 9:20 pm to have make (sic) his own assessment of the situation and order an urgent caesarean section.”
[95] It is the role and responsibility of the senior clinician to recognise the significance of this constellation of indicators and take immediate remedial steps, in this case by undertaking an urgent caesarean section, a priority identified by Dr Chowdary and conveyed to Dr Johns as soon as she examined Ms T’s presentation.
[96] Dr Sangalli, referring to the WDHB policies, observed that preparations for an urgent caesarean section should be made if the bradycardia persists for more than three minutes and if the FHR has not recovered within nine minutes the patient should be moved to the operating theatre. It is against this background that Dr Johns’ failure to act over a 29 minute period is to be assessed.
[97] Furthermore, the Tribunal determined that Dr Johns’ clinical decisions and priorities were lamentably flawed. He initially chose to trade off the remote possibility that Ms T’s cervix would dilate quickly enough for a vaginal delivery to follow. He made this assessment despite the minimal dilation even after the administration of
Prostaglandin and increasing doses of Syntocinon. Dr Johns’ decision to obtain a lactate to test for acidosis is contraindicated by the guidelines because it would inevitably delay performing a caesarean section. Further valuable time was absorbed when Dr Johns delayed taking the lactate until Dr Chowdary arrived and then, despite Dr Chowdary’s advice that an urgent caesarean section was required, insisted that she take the sample, an insistence which he, himself, described as “dogmatic” and “blinkered”. Plainly Dr Johns’ inflexibility was detected by Dr Chowdary who said she believed it would be quicker to perform the lactate rather than debate the issue with Dr Johns. This observation is also consistent with the charge midwife’s evidence that Dr Johns did not appear to be amenable to receiving advice.
[98] In addition to these serious, glaring clinical errors Dr Johns did not, at any time, speak to either Ms T or her husband. He did not tell her that the baby’s heart rate was depressed and had been for some time. He did not explain to her what the implications and consequences of this presentation might be. He did not discuss delivery options or why he preferred a vaginal delivery over a caesarean section. The evidence is that he had sufficient time, despite the unravelling emergency, to have had these discussions with both parents.
[99] It is noteworthy that while this was a single, evolving event, Dr Johns’ progressive lapses were serial and compounding. This was not a case of a single, isolated act or omission which led to a tragic result.
[100] Compounding these lapses was Dr Johns’ subsequent explanation to the Health and Disability Commissioner when, in March 2012, he said:
“The fetal heart rate did show significant bradycardia but otherwise was of reasonable characteristic. I therefore decided to be expectant – this decision proved wrong.”
[101] Dr Johns’ description of the CTG trace as “of reasonable characteristic” runs counter to the evidence of all the experts and was a matter which the Tribunal made reference to.18
18 Director of Proceedings v Johns, above n 1, at [147].
[102]Dr Sangalli described it in this way:
“[109] Because the CTG preceding the bradycardia was already abnormal (from about 2030 hours) and because the bradycardia was severe and prolonged, and because a vaginal delivery was not possible, an immediate caesarean section was required. In my opinion a crash caesarean section should have been ordered by Dr Johns very soon after his arrival at 2115 and no later than 2121 hours that is, roughly three minutes after Dr Johns VE of Ms T indicating she was only 3 to 4 cms dilated and nine minutes after the onset of bradycardia. Failure to proceed to caesarean by 2121 hours is a severe departure from obstetrics standards.”
[103]Dr Beard made a similar observation when he said:
“[62] In my opinion, the trace was significantly abnormal and terminal at 2121 hours. Once Dr Johns was present he should have recognised this. Not to proceed to a caesarean section was a serious departure from standards.”
[104] It is against that body of evidence that Ms Stuart’s four alleged errors need to be assessed. I shall consider each in turn.
(a)Did the Tribunal fail to adequately consider environmental factors?
[105] Ms Stuart lists the following so-called environmental or external factors which she submits the Tribunal, in reaching its decision that the disciplinary threshold had been met, should have placed greater weight on. These are that Dr Johns was over worked and exhausted, this was an emergency situation, there were failures by other staff, and that he had “hit the wall”.
[106] The extent to which subjective factors, including the personal circumstances of the practitioner, may be taken into account in the second stage of assessing professional misconduct has been the subject of various judicial comments. For example, Venning J in McKenzie v Medical Practitioners Disciplinary Tribunal said:19
“… even at that second stage it is not for the Disciplinary Tribunal or the Court to become engaged in the consideration of or to take into account subjective considerations or the personal circumstances or knowledge of the particular practitioner. The purpose of the disciplinary procedure is the protection of the public by the maintenance of professional standards. That objective could not
19 McKenzie v MPDT [2004] NZAR 47 at [71].
be met if in every case the Tribunal and the Court was required to take into account subjective considerations relating to the practitioner.”
[107] However, Ronald Young J in Dr E v Director of Proceedings discussed the extent to which it may be permissible to take into account personal circumstances in the second stage of assessment when, commenting on Venning J’s statement in McKenzie, he said:20
“[25] I would not be prepared to go quite as far as Venning J. I consider there may be personal circumstances which substantially affect the seriousness of the particular negligence or malpractice which are therefore relevant to the decision as to whether a disciplinary action was required. A failure to consider these inappropriate circumstances could constitute a failure to take into account a relevant consideration.
[26] It is open to the Tribunal to conclude a practitioner has been negligent but conclude, given the explanation received from the practitioner, that the negligence (or malpractice) is not sufficiently serious to justify disciplinary sanction.”
[108] In the present case it is not necessary for me to decide whether or not to what extent personal or external factors may be taken into account as part of the threshold inquiry. This is because I am satisfied that even taking these matters into account the Tribunal was correct to make a finding of professional misconduct. My reasons follow.
[109] Ms Stuart first emphasises Dr Johns’ adverse working conditions. The evidence reveals that the relevant units of the hospital were understaffed at the time and that Dr Johns’ hours of work were substantial. Additionally, on 15 October 2011 Dr Johns covered both his role and that of the obstetrics registrar.
[110] The Tribunal had the benefit of expert opinion on this point. Furthermore, three members of the Tribunal were registered medical practitioners including an obstetric specialist.
[111] While Dr Beard accepted that it was unusual for a doctor to be rostered as both registrar and obstetrician it was something which occurred occasionally. Dr Beard had recently found himself in that situation and explained that a responsible clinician
20 Dr E v Director of Proceedings (2008) 18 PRNZ 1003.
would consult with management in order to obtain additional resources. Dr Sangalli’s evidence was that while it was unpleasant and something to be avoided, it did happen sometimes.
[112] As Dr Johns himself observed, he was used to working long hours and in stressful situations.
[113] Furthermore, when the Tribunal provided Dr Johns with an opportunity to explain his failures, which it did on several occasions, he made no mention of tiredness contributing to his clinical lapses. If this factor was as significant as Ms Stuart now presses it is surprising Dr Johns did not mention it when given the opportunity to do so.
[114] The Tribunal accepted that the working conditions in which Dr Johns was operating at the relevant time were unusual. It is likely that Dr Johns was, as he claimed, exhausted. However, these factors were explicitly taken into account by the Tribunal when it observed:
“[142] The Tribunal has challenged itself about whether the late call to an urgent situation, tiredness and understaffing, are sufficient to find that in all the circumstances, [Dr Johns’] serious failure should not amount to professional misconduct. However, having examined the evidence we consider the Director has established the charge of professional misconduct to the necessary threshold.
…
[145] The Tribunal was not satisfied that the external factors raised by [Dr Johns] are sufficient to avoid a finding of professional misconduct. The Tribunal did not consider any of these factors were out of the expected range of experience, from time to time, by senior consultants. They are all matters that a senior obstetric consultant is expected to be able to overcome, when making straightforward clinical decisions. The Tribunal accepts the evidence of Mr Sangalli and Mr Beard in this regard.”
[115] For these reasons I am not satisfied the Tribunal erred. The Tribunal’s rejection of this submission was not only supported by the expert testimony but also the specialist knowledge possessed by the Tribunal’s membership. It is appropriate that some deference be given to the Tribunal’s findings on this question.
[116] The second factor which Ms Stuart invites the Court to consider in this context is the claim that Dr Johns was faced with an emergency situation which, when combined with his exhaustion, makes it unsurprising he was not performing at a high standard.
[117] As already discussed, the Tribunal took specific account of this factor. It concluded the circumstances which confronted Dr Johns did not fall outside the expected range which a senior consultant will be exposed to from time to time. Correctly, in my view, the Tribunal noted that these are all matters which a senior obstetric consultant is expected to overcome when making straightforward clinical decisions.
[118] The third criticism Ms Stuart levels at the Tribunal’s decision is that it gave insufficient weight to the conduct of other staff which likely contributed, or even caused, the tragic outcome. In particular Ms Stuart points to the confusion around the CTG recordings and the failure to attach an FSE to Baby H’s scalp earlier. She submits that the various abnormalities were apparent from at least 8:40 pm and Dr Johns should have been called, at the very latest, by 8:45 pm. Nearly half an hour then elapsed before Dr Johns was called by which time the baby was already severely, and possibly terminally, compromised.
[119] While Dr Clentworth’s description of the lack of communication from the midwives as “lamentable” is probably fair, I agree with Ms Wills that the clinical decisions made by the midwives earlier in the day had no bearing on Dr Johns’ ability to exercise the most basic of clinical competencies when he first arrived in Ms T’s room. Neither do they have any bearing on his ability to communicate with Ms T or her husband.
[120] All the experts agreed that Dr Johns was in a position to make the appropriate clinical decisions when he first attended Ms T.
[121] Furthermore, there is some force in Ms Wills’ submission that Dr Johns should have been a good deal more active in his care of Ms T earlier. Dr Johns accepted Ms T presented as a high risk patient. He also accepted that despite being busy it was not
unreasonable to expect him to have carried out a ward round. He acknowledged he should have physically seen Ms T every few hours and made specific inquiries about her given her various risk factors. Furthermore, he accepted he knew that Ms T had been in the hospital since her admission more than three days earlier.
[122] Finally, I reject the submission that the other environmental factors, namely that this was an emergency situation and Dr Johns had “hit the wall” were not properly or adequately considered by the Tribunal. For the reasons already discussed these issues were all properly considered by the Tribunal.
[123] I am thus not satisfied that any of the environmental, personal or external factors advanced were not properly assessed and weighed by the Tribunal in coming to its decision.
(b)Did the Tribunal take into account irrelevant factors?
[124]To a considerable extent I have already discussed these issues.
[125] This is the second general criticism of the Tribunal’s decision. Ms Stuart submits that the Tribunal wrongly took into account irrelevant factors and, in particular, the care provided to Ms T earlier on the Friday and the conclusion by the Tribunal that earlier action by the midwifery staff might not have made a difference to the outcome.
[126] In support of this submission, Ms Stuart points to a passage in the Tribunal’s decision where it stated that there was “no evidence” Dr Johns saw the patient at all the day before the incident. She submits that the inference to be drawn from this passage is that this failure was a further artefact of Dr Johns’ failures and contributed to the Tribunal’s finding.
[127] However, this criticism needs to be viewed in context. The paragraph in question forms part of the Tribunal’s description of the chronology. It forms no part of the Tribunal’s reasoning. It reads:
“There is no evidence that [Dr Johns] saw the patient at all [on Friday]. There is no note in the medical record that he attended to examine her. Dr S had
signed the medication chart at 3:00 pm that day to authorise a second dose of prostaglandin but likely did this while passing through the birthing suite.”
[128] Taken in context and having regard to the fact that these observations were not repeated elsewhere in the decision and form no part of the Tribunal’s reasoning, this criticism can be readily dismissed.
[129] The second challenge under this heading relates to the Tribunal’s comment regarding the outcome had Dr Johns been called earlier.
[130]Again, context is everything. The full passage reads:
“[138] The Tribunal accepts the evidence that Dr Johns should have been called by the charge midwife to assess the patient earlier that evening; at the latest sometime between 8:44 pm and 9:04 pm. In making this observation, we are also mindful that it will remain unresolved whether calling Dr Johns earlier in the evening would have made a difference to his decision to await a vaginal delivery that evening.”
[131] I do not read into this paragraph the same meaning as Ms Stuart seeks to be drawn from it. In my view the Tribunal is recording its concerns that Dr Johns should have been called by the nursing or midwifery staff earlier. It is not a criticism of Dr Johns at all. Furthermore, the Tribunal is simply observing that even if Dr Johns had been called earlier it is questionable whether he would have approached differently the decision of whether to undertake a caesarean section or wait for a vaginal delivery. The resolution of this question would require speculation. The Tribunal expressly avoided descending into speculation no doubt because it was of the view that to do so would, in any event, be of no use in terms of deciding the ultimate issue.
[132]For these reasons I am not satisfied this ground of appeal is made out.
(c)Did the Tribunal fail to consider the purposes of the Act?
[133] The essence of Ms Stuart’s submission on this point is that, having regard to the purposes of the Act, Dr Johns’ conduct, when viewed in context, does not warrant a finding of professional misconduct.
[134] In support of that submission she relies on Kirby J’s statement in Pillai that a disciplinary finding can be made, not only in cases involving deliberate misconduct, but also in cases involving “such serious negligence as, although not deliberate, to portray an indifference and abuse of the privileges which accompany registration as a medical practitioner”.
[135]Apparently adopting the phraseology from Pillai, the Tribunal concluded:
“[149] This conduct is so seriously negligent that, while not deliberate, it does unfortunately portray an indifference and abuse of the privileges that accompany registration as a medical practitioner. It is for this reason that Dr S’ conduct warrants a disciplinary sanction.”
[136] Ms Stuart’s complaint is that although it would appear the Tribunal adopted the test in Pillai it failed to take into account what Kirby J explained was the purpose of discipline, namely:21
“… not punishment of the practitioner but protection of the public. The public needs to be protected from delinquents and wrongdoers within the professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent to the rudimentary professional requirements.”
[137] Ms Stuart submits that plainly Dr Johns’ conduct does not fall within this description. Dr Johns simply made the wrong clinical assessment. He knew and understood the relevant standards, guidelines and policies and was not ignorant or indifferent to them.
[138] For the reasons I have already listed, I do not regard the Pillai test as helpful in the New Zealand paradigm. As noted earlier, I agree with Courtney J in Martin when she said that reliance on Pillai results in a threshold which is too high for the charge of professional misconduct in this jurisdiction, particularly given that, unlike the New South Wales legislation, misconduct under s 101(1) covers wide ranging conduct for which various sanctions may be ordered short of cancellation including censure, fine, suspension, or the imposition of conditions on practice .22
21 Pillai v Messiter, above n 12, at 201.
22 Martin v Director of Proceedings, above n 14, at [27] and [28].
[139] The central question here is whether the departure from acceptable standards has been significant enough to warrant sanction as both the Court of Appeal and this Court have previously observed.23 On the evidence I am satisfied that this test has been met for the reasons more fully set out by the Tribunal.24 These include the following:
(a)the expert evidence that Dr Johns should have paid more attention to Ms T as a high risk patient from at least from 2:15 pm on 15 October 2011;
(b)from 9:15 pm Dr Johns had all the necessary time and resources available to make the appropriate decisions;
(c)on the expert evidence, while the midwife certainly could have called Dr Johns earlier, he was in a position by 9:20 pm to make his own assessment and order an urgent caesarean;
(d)the errors from 9:20 pm were basic decision making errors for a consultant obstetrician as acknowledged by the three experts and by Dr Johns;
(e)the errors amount to such basic and serious acts of negligence that they cannot be excused by any professional misconduct on the part of the midwifery staff, tiredness or understaffing; and
(f)from 9:20 pm the negligent decision not to order an urgent caesarean section by failing to act in a way which would have assisted him to come to the correct decision more promptly, in particular by failing:
(i)to perform a lactate himself, instead waiting for a further 10 minutes for Dr Chowdary to arrive and undertake the procedure;
23 F v Medical Practitioners Disciplinary Tribunal, above n 11; B v Medical Council, above n 9.
24 Director of Proceedings v Johns, above n 1, at [38] to [44].
(ii)to call an immediate caesarean section when Dr Chowdary arrived despite her telling him that this was needed urgently;
(iii)to alter his decision even after Dr Chowdary challenged him that performing a lactate was contraindicated; and
(iv)to discuss the options available with the patient and her husband as from 9:20 pm.
[140] While the interval under scrutiny is narrow, this was not a case of a single, isolated error of clinical judgement. The conduct in question involved serial clinical errors made in the context of a high risk patient.
[141] When the misconduct is viewed in the context of the purposes of the Act and the emphasis which is placed on the protection of the health and safety of members of the public, disciplinary sanction was necessary. Indeed the Tribunal made express reference to that principle.
[142] For that reason I do not accept that the Tribunal failed to consider the purposes of the Act in coming to its decision. This ground must also fail.
(d) Did the Tribunal err in its reference to punishment in the “threshold inquiry”?
[143] Ms Stuart submits that the principle of punishment is not a relevant consideration as part of the threshold analysis and that the Tribunal erred when it made reference to punishment.
[144] The only reference to punishment in the Tribunal’s decision is where the Tribunal set out what it described as the “well established two stage test” before determining professional misconduct. In defining the threshold test it said:
“Secondly, the Tribunal must be satisfied that the practitioner’s acts or omissions require disciplinary action for the purposes of protection of the public or maintaining professional standards or punishing the practitioner.”
[145] This issue can be dealt with briefly. This is the only reference the Tribunal made to punishment. The Tribunal’s description of the threshold test appears to be drawn, almost word for word, from the formulation in Nuttal.25
[146] I agree with Ms Wills that this objection is overstated. Disciplinary proceedings will necessarily have a punitive effect notwithstanding that the overarching purpose underlying discipline is public protection. A finding of professional misconduct will, almost invariably, attract punishment by way of the imposition of one or more of the available sanctions. The seriousness of the negligence was sufficient to warrant disciplinary sanction. That was an explicit finding of the Tribunal.
[147] Furthermore, there is no other reference to punishment in the Tribunal’s decision and it is apparent from reading the judgment as a whole that the Tribunal measured Dr Johns’ conduct against the relevant principles of which punishment was not one. In fact, in determining that Dr Johns’ conduct warranted disciplinary sanction, the Tribunal applied the threshold test in Pillai which I have already determined is too high in the New Zealand context.
[148]For these reasons I am satisfied that this ground must also fail.
[149] It follows the appeal against the Tribunal’s liability decision should be dismissed.
Suppression appeal
Introduction
[150] Following the Tribunal’s determination that Dr Johns was guilty of professional misconduct he applied for permanent name suppression which was opposed by the Director.
[151] In determining that it was desirable to grant the application the Tribunal weighed up what it regarded as the relevant competing interests.
25 NZHDPT v Nuttal 8/Med 04/03P, 18 April 2005 at 71.2.
[152] The interests weighing in favour of suppression included the risk that publication of Dr Johns’ name would cause serious harm to the health and well-being of his elderly mother, that Dr Johns was considered safe to continue working in gynaecology and elective (non-acute) obstetrics, and that publication would disproportionately harm Dr Johns’ ability to continue working in those fields.
[153] Conversely, the interests weighing in favour of publication included the public interest in knowing the name of the practitioner, the need for accountability and transparency in the disciplinary process, freedom of speech and the risk that suppression would unfairly impugn other doctors operating in similar fields to Dr Johns.
[154] In the end, the Tribunal was satisfied that the private interests of Dr Johns were sufficient to outweigh the public interest factors. The Tribunal considered that the public interest in accountability and transparency could be met by an anonymised version of the decision and that any risk of impugning other doctors working in the field could be managed by suppressing further particulars including the name of the relevant District Health Board (“DHB”) and the names of Dr Johns’ colleagues. Thus, in the Tribunal’s view, this was “a case in which public interests in safety and professional standards can be maintained while accommodating the private interest factors that favour the practitioner”.26
A précis of the argument on appeal
[155] The essence of the Director’s complaint is that the Tribunal failed to appropriately carry out the required balancing exercise. Instead of focusing on the principle of openness in disciplinary cases and the basis on which that principle should yield to the person’s interests, the Tribunal’s reasoning reveals an error in its approach; it decided that name suppression was appropriate and then rationalised how the public interest would be met in ways other than the open disclosure of the decision.
[156] The Director contends that in the course of this process the Tribunal made conclusions of fact for which there was no evidence and/or relied on evidence for those
26 Director of Proceedings v Johns, above n 2, at [54].
conclusions to which it ought to have attached little or no weight. Specifically, Ms Wills submits the Tribunal overstated the risk of harm to Dr Johns’ mother if his name was published and the risk that publication would jeopardise Dr Johns’ continuing employment prospects with the WDHB.
[157] Ms Wills further submits that the Tribunal failed to take into account key public interest considerations including those which the Tribunal itself had identified as well as those identified by the Medical Council and the Coroner. She submits the Tribunal “ignored its own residual concerns about Dr Johns’ clinical judgement”.
[158] Ms Wills also objects to the Tribunal, on its initiative, making non-publication orders relating to the identity of the WDHB in contravention of its statutory obligations to consult with the parties and the complainant.
Approach on appeal
[159] It is common ground that this appeal, being one against the exercise of a discretion, requires the Director to show one or more of the following:27
(a)an error of law or principle;
(b)that an irrelevant matter was taken into account;
(c)that a relevant matter was not taken into account; or
(d)that the decision was plainly wrong.
Name suppression – legal principles
[160] The Tribunal’s ability to grant suppression is governed by s 95(2) of the Act which provides:
27 May v May (1982) 1 NZFLR 165 (CA) at [169] to [170]; Kacem & Bashir [2011] 2 NZLR 1 (SC) at [32]; Rabih v A Professional Conduct Committee of the Dental Council [2015] NZHC 1110 at [22]; Rowley & Skinner v Commissioner of Inland Revenue [2011] NZCA 160 at [12] and [2011] NZSC 76 at [5].
“(2) If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may (on application by any of the parties or on its own initiative) make any 1 or more of the following orders:
(a)an order that the whole or any part of a hearing must be held in private;
(b)an order prohibiting the publication of any report or account of any part of a hearing, whether held in public or in private;
[196] Putting the issue of classification to one side, it is necessary to critically analyse the Tribunal’s determination that Dr Johns poses limited public safety concerns.
[197] Ms Wills submits that the Tribunal failed to appropriately take into account the public safety concerns identified by the WDHB, the Medical Council’s competency review and its own concerns regarding Dr Johns’ clinical decision making. She submits these are significant factors the Tribunal ought to have considered.
[198] In response, Ms Stuart submits that plainly the public interest would be higher in cases where the public needs to know a practitioner’s name as opposed to where the public simply has a right to know. In support of this proposition she cites the observations of Fogarty J in ANG v PCC where he said:48
47 Director of Proceedings v Johns, above n 2, at [52](b).
48 ANG v A Professional Conduct Committee above n 29 at [43].
“The fact that the PCC has allowed X to continue to practice is a judgement that he is fit to continue practising medicine. This means that the PCC judges that the public can have trust in X. In turn, this exposes the critical assumption that the public have a right to know, independent of any need to know.”
[199]He went on:
“Section 95(1) reflects the principle that hearings of a Court should be conducted in public, absent special reasons. That principle does not reflect some inherent constitutional right of the public to know, subsequent to the hearing, every aspect to the hearing.”
[200] I have earlier cited Fogarty J’s decision in ANG as support for the proposition that application of the principle of openness must further one of the Tribunal’s disciplinary purposes. I confirm my agreement with that proposition. However, the observations cited in the preceding paragraphs can only be taken so far. If Fogarty J’s reasoning is taken to its logical extension then each time a practitioner is cleared as safe to continue in practice name suppression would automatically follow on the basis the public can have trust in that practitioner. This would, in my view, reflect an unduly paternalistic approach inconsistent with a strong current of authority49 and with s 95 itself.
[201] Notwithstanding the dangers of comparative analysis in an area where each decision must turn on its facts, it is worth considering the situation in F v The Medical Practitioners Disciplinary Tribunal given its striking factual similarity to the present case.50 In F, the practitioner was also a specialist obstetrician. He attended a very difficult birth which was finally achieved using forceps and stirrups. As a result of trauma suffered at birth the child was severely brain damaged. The baby was born a profoundly deaf quadriplegic and had to be tube fed. The child later died.
[202] The incident came before a disciplinary tribunal which ultimately concluded that the practitioner had erred in his clinical management of the mother’s labour; he had erred in commencing syntocin infusion to the mother rather than facilitating delivery. Significantly, this incident marked the only blemish in an otherwise exemplary career and the practitioner was permitted to continue in practice without
49 See the cases cited in [168]-[170] above.
50 F v The Medical Practitioners Disciplinary Tribunal, above n 34.
any limitations or conditions. The Tribunal declined to grant name suppression. It then requested the Medical Council to consider whether or not it would be desirable, useful or beneficial for the practitioner to undergo a competency review.
[203] The practitioner appealed to this Court. In the meantime, the Medical Council determined that the practitioner was not required to undergo such a review. On appeal, it was submitted on the practitioner’s behalf that this new development altered the basis upon which publication was to be considered. Laurenson J emphatically rejected that argument:
“[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 practice medicine. 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 misjudgement. The public, and in particular potential patients, are entitled to know whether they wish to engage his services in the future.”
[204]Later in his judgment, Laurenson J concluded:
“[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.”
[205] While I am not bound to follow this decision, I do observe that it is difficult to identify a principled basis upon which F can be distinguished from the present case. And in any event, I consider the public interest in publication to be stronger in the present case than in F. In F the Medical Council determined a competency review was unnecessary. By contrast, as Ms Wills submits, Dr Johns was suspended by the Medical Council from practising acute obstetrics as a result of a competency review. That review included an assessment of Dr Johns’ clinical judgment in relation to an earlier perinatal infant death which occurred in November 2010. The reviewer had concerns over Dr Johns’ inadequate monitoring of the fetus and clinical judgement in delaying the decision to proceed to an emergency caesarean section. While the Tribunal did not refer to this incident, it harboured its own residual concerns about
Dr Johns’ clinical decision making and imposed a formal condition requiring Dr Johns to undergo a cognitive assessment prior to returning to acute obstetric practice.
[206] Ms Wills submits that any cognitive deficit identified by such an assessment would not be limited to a particular aspect of Dr Johns’ practice such as acute obstetrics. Ms Wills is also critical of the Tribunal’s statement that Dr Johns has practised without further incident for the last six years. She submits this statement ignores the possibility that there may have been other incidents which are not the subject of a formal complaint, a possibility which must be a real one in light of the competency review and the Tribunal’s own residual concerns. Ms Wills submits any incidents are only likely to come to light if Dr Johns’ name is published.
[207] In considering these submissions, I am cognisant that the Tribunal enjoyed the unique advantage of hearing the evidence and making its own assessment of Dr Johns’ risk profile. Ms Wills’ criticisms notwithstanding, I am satisfied it was open to the Tribunal to conclude that Dr Johns poses no safety risk to the public while practising in non-acute obstetrics.
[208] Nevertheless, Ms Wills’ criticisms point powerfully towards there being a genuine public interest in publishing Dr Johns’ name so that members of the public may make an informed decision about their choice of medical practitioner. It does seem to me that the Tribunal has understated the public interest in publication in this case by relying on its conclusion that Dr Johns was safe to continue practising in non- acute obstetrics. This is a point I will return to in due course.
[209] In reaching this conclusion I have not overlooked Dr Johns’ affidavit in which he gave evidence regarding the impact publication could have on his current and future patients. He said:
“Nevertheless, I believe that publication will run the risk of causing my current and future patients to lose faith in my competence generally, and having concerns about consulting with me even on issues outside the field of acute obstetrics. These areas are sensitive by their nature.
Additionally, while patients may generally have a right know of such disciplinary findings, the public system does not easily enable them to choose another clinician. Certainly at the DHB there are limited resources. Medical staff rostering practices in public hospitals also affect this. If the patients then
have concerns about my competence (which, in the areas in which I now work would be unreasonable), this could result in patients simply avoiding treatment, or not being able to obtain the treatment they need from someone else.”
[210] The short answer to these concerns is that the public’s right to make an informed decision about their choice of medical practitioner is not abrogated simply because the practitioner is employed in the public health system.
Was the Tribunal wrong to find the consequences of publication would be unduly punitive?
[211] The third factor which the Tribunal determined weighed in favour of suppression was that if the decision was published the professional consequences for Dr Johns may be unduly punitive.
[212]The Tribunal put it in the following way:51
“There is some risk that if this decision is published that the professional consequences may be unduly punitive. There is some real risk that he may lose his employment as a result. Publication may therefore have the disproportionately punitive effect for the practitioner given the circumstances of his misconduct and the mitigating features in this case. A serious clinical error has been made by the practitioner but it has not been part of a pattern of serious errors and it did not involve deliberate or dishonest conduct. The practitioner has proved himself to be otherwise capable and deserving of rehabilitation. Publication of his name is likely to make his rehabilitation very difficult.”
[213] Ms Wills submits that in this paragraph the Tribunal erroneously imported penalty considerations labelled as a private interest. She submits that the Tribunal’s approach is flawed because it is predicated on a risk of Dr Johns losing his job if the decision is published. She submits there is no evidence to support that conclusion because his employer is aware of the Tribunal’s findings and any risk to Dr Johns’ employment arises as a consequence of his professional misconduct rather than publication of the Tribunal’s findings. She also notes that despite the WDHB knowing of the circumstances it has taken no steps to terminate his employment.
51 Director of Proceedings v Johns, above n 2, at [52](c).
[214] Ms Stuart submits the Tribunal’s observations are a matter of common sense, rather than evidence. It is self-evident that the publication of Dr Johns’ name would affect the reputation of the WDHB which would, in turn, make the prospect of any disciplinary action more likely.
[215] I agree with Ms Wills that the Tribunal should not have taken into account any risk to Dr Johns’ continued employment with the WDHB. The only evidence for this conclusion was Dr Johns’ bald assertion that publication would jeopardise his employment prospects. I am unable to accept Ms Stuart’s submission that this is self- evident. The WDHB is aware of the incidents and has continued to support Dr Johns in practice. It can be reasonably expected that this support would continue in the event of publication.
[216] I do not overlook that the potential loss of employment was not the only issue which the Tribunal considered under this heading. It also considered that Dr Johns’ rehabilitation as a clinician would be adversely affected if his name was published. However, it is clear from the passage reproduced above at [212] that the “real risk” of loss of employment featured prominently in the Tribunal’s assessment of Dr Johns’ private interests. It should not have. I am satisfied the Tribunal erred in factoring this consideration into its weighting assessment.
[217] For completeness, I will consider the other challenges to the Tribunal’s decision before conducting the weighting exercise afresh.
Did the Tribunal err in not having regard to, or sufficient regard to, the principles of accountability, transparency and freedom of expression?
[218] On this issue the Tribunal observed that its decision would remain available to the public and the profession even if Dr Johns’ name was not published. The lessons from the decision and the fact that the practitioner had been held to account for his misconduct would still be publicly evident. The Tribunal stated:
“We are mindful that publishing the name of the practitioner is often seen as an important part of this transparency but is not the only measure of transparency.”
[219] The Director submits that the protection of the public is achieved by public, transparent disciplinary proceedings and the openness of their reporting. Identification of practitioners by name who come before the Tribunal will enable the public to have confidence in the integrity of the disciplinary process. Ms Wills submits that publicity educates the community and alerts it to the risks of health and safety. It is thus in the public interest that health professionals facing disciplinary charges and/or found guilty of professional misconduct are identified in order that present and potential patients can make an informed decision as to whom they choose to provide their health care.
[220] Resolution of this issue, as I have endeavoured to demonstrate, depends on whether publication of a practitioner’s name advances any of the Tribunal’s disciplinary purposes. I cannot accept that the public’s confidence in the disciplinary process is necessarily compromised simply by reason of the suppression of the medical practitioner’s name. Confidence in the disciplinary system will often be maintained when the public observes that the disciplinary process has been conducted with adverse findings made against the practitioner. In some instances, an anonymised version of the Tribunal’s decisions would achieve the purpose of maintaining public confidence in the disciplinary process and the profession. However, in the present case, for the reasons given earlier, the public has a right to publication so that it can make an informed decision.
Was the Tribunal wrong in its assessment of the risk of unfairly impugning other doctors?
[221] Also amongst the various public interest factors listed by the Tribunal was the risk of unfairly impugning other doctors known to be employed at the WDHB. The Tribunal’s remedy was to make orders suppressing the identity of the DHB.
[222] The Director criticises the Tribunal’s observation that Dr Johns’ medical colleagues at the WDHB already know of the proceedings. She submits no such evidence was before the Tribunal and that the Tribunal’s remedy of suppressing the WDHB simply widened the cohort of potentially impugned doctors employed by other DHBs. She submits that the suppression of the identity of the WDHB was sought
neither by Dr Johns nor by the Director and that denying the parties the opportunity to address this question was contrary to s 95(4) of the Act.
[223] As Ms Stuart submits, even if the Tribunal erred by not providing the parties the opportunity to make submissions on this issue, this Court on appeal has received submissions on the point. Dr Johns supports the Tribunal’s finding. Plainly, the Director does not.
[224] However, I am satisfied that the Tribunal did not err in its assessment on this point. It is common place for ancillary orders to be made suppressing details other than the name of the person seeking protection to mitigate the risk of impugning the reputation of innocent others. By suppressing the name of the WDHB the Tribunal essentially widened the number of possible practitioners to virtually all of those practising in the field of obstetrics and gynaecology. The risk of unfairly impugning the reputation of innocent others is a relevant consideration in determining whether or not to grant name suppression. Normally this consideration operates in favour of disclosure. However, in this case, the Tribunal turned its mind to the risk others might be unfairly implicated in the event Dr Johns’ name was published. The steps it took were perfectly acceptable mechanisms designed to protect the reputation of the WDHB and, as a consequence, other obstetricians employed by that organisation.
[225]I am not satisfied that the Tribunal erred in this respect.
Did the Tribunal err in failing to consider the seriousness of the breach?
[226] The Director submits that conspicuously absent from the Tribunal’s discussion of the relevant public interest factors is any analysis of the seriousness of the professional misconduct in question. While I accept that general submission the Tribunal did distinguish the nature of Dr Johns’ conduct from other forms of misconduct contemplated by the Act and encountered by the Tribunal. The Tribunal, while recognising Dr Johns’ conduct amounted to “a serious clinical error” did point out that it was not part of a pattern of serious errors or involved deliberate or dishonest conduct.
[227] Furthermore, I regard it as significant that this was the same Tribunal which had made the determinations at the liability phase. It also considered the relevant aggravating and mitigating factors during the penalty and suppression hearing. There was no need for the Tribunal to repeat in any detail its findings as to the nature of the breaches or their seriousness. It had set these out in full earlier in the same decision.
[228] Given the factors which the Tribunal determined in setting penalty and the reasons it gave for not imposing more severe sanctions, it must be the case that the Tribunal determined this single, albeit serious, lapse weighed in favour of suppression. That finding, although not express, is implicit in the Tribunal’s decision when read as a whole. No reversible error arises under this issue.
Final assessment
[229] Upon critical analysis, the Tribunal’s reasoning in support of name suppression appears weak. The Tribunal identified three private interest factors weighing in favour of suppression. The first of these, being the claimed effects of publication on Dr Johns’ elderly mother, while relevant, could not outweigh a legitimate public interest in publication. As discussed earlier, I consider the Tribunal overstated the risk that publication could seriously impact on the welfare of Dr Johns’ mother. That risk appears to me to be somewhat remote.
[230] The second private interest factor identified by the Tribunal was that Dr Johns has been assessed as safe to continue practising in non-acute obstetrics. As discussed above, such a finding can be no guarantee of suppression. That approach was expressly rejected by Laurenson J in F and would deprive the general public of its right to make an informed choice when receiving medical care. Added to this, a competency review of two separate incidents gave rise to concerns reflected in the Tribunal’s imposition of a formal condition requiring Dr Johns to undergo a cognitive assessment prior to returning to the practice of acute obstetrics. Without in any way impeaching the Tribunal’s conclusion that Dr Johns poses limited public safety concerns, the competency review elevates the public interest in suppression. I am not persuaded the condition which presently prevents Dr Johns from practising in acute obstetrics displaces this public interest.
[231] The third factor, that publication would be unduly punitive, reflected the Tribunal’s assessment that there was a real risk Dr Johns would lose employment following publication and that Dr Johns had proven himself to be otherwise capable and deserving of rehabilitation. As discussed earlier, I consider the Tribunal should not have considered the risk that publication would cause Dr Johns to lose his employment. That causes me to conduct the exercise afresh.
[232] I am satisfied the Tribunal applied excessive weight to the factors standing in favour of suppression and failed to appreciate the legitimate public interest in publication in this particular case. As Panckhurst J observed in T v Director of Proceedings, once an adverse finding has been made in relation to a practitioner’s professional performance, the probability must be that the public interest considerations will require that name of the practitioner be published in the preponderance of cases.52 That is the case here. Publication serves the purposes of the Act. On closer examination, the factors called in aid by Dr Johns are not sufficiently weighty to displace the legitimate public interest in publication.
[233] In reaching this conclusion, I feel compelled to endorse the observations of the Tribunal that Dr Johns “has proven himself over a lengthy career to be of real value to the profession”.53 Dr Johns has enjoyed a long and successful career in obstetrics and gynaecology. He has made an immense and very positive contribution to both his profession and the community. In directing name suppression should not continue I emphasise that my decision reflects the application of the relevant legal principles as they affect the public’s right to make an informed decision. This is a right which cannot be abrogated even where the Tribunal has determined the practitioner is safe to practice. Nevertheless, in making an informed decision, one would hope and expect members of the public would recognise Dr Johns’ well proven value as a highly experienced medical professional whose competence to continue practising in non- acute obstetrics has been recognised both by the Tribunal and his professional regulating body.
Result
[234]Dr Johns’ appeal against the Tribunal’s decision on liability is dismissed.
[235] The Director’s appeal against the Tribunal’s decision to order Dr Johns’ name suppression is allowed.
52 T v Director of Proceedings, above n 33.
53 At [27].
Costs
[236] In the event that the parties are unable to agree I direct that memoranda as to costs are to be filed and served within 20 working days of the date of this judgment. No memorandum may exceed five pages in length.
Moore J
Solicitors/Counsel:
Ms Stuart, Auckland
Health and Disability Commissioner, Wellington Ms Herschell, Wellington
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