Lim v Medical Council of New Zealand
[2016] NZHC 485
•22 March 2016
UNTIL THE FURTHER ORDER OF THE COURT, THE NAME OF THE APPLICANT AND ANY PARTICULARS WHICH MIGHT IDENTIFY HIM SHALL NOT BE PUBLISHED BY THE NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
NO PERSON SHALL HAVE ACCESS TO THE COURT FILE (OTHER THAN THIS JUDGMENT) WITHOUT THE LEAVE OF A JUDGE OF THIS COURT. THE ORDER SHALL NOT APPLY TO COUNSEL OR THE SOLICITORS FOR THE PARTIES; DR LIM; AND ANY DULY AUTHORISED REPRESENTATIVE OF THE MEDICAL COUNCIL OF NEW ZEALAND.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-124 [2016] NZHC 485
IN THE MATTER of an appeal against a decision of the
District Court
UNDER
Section 113 of the Health Practitioners
Competence Assurance Act 2003BETWEEN
DAVID KANG HUAT LIM Applicant
AND
MEDICAL COUNCIL OF NEW ZEALAND
Respondent
Hearing: 29 February 2016 Appearances:
H Waalkens QC for Applicant/Appellant
D La Hood and A Garrick for RespondentJudgment:
22 March 2016
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 22 March 2016 at 3:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
LIM v MEDICAL COUNCIL OF NEW ZEALAND [2016] NZHC 485 [22 March 2016]
Introduction and result
[1] Dr David Lim was a general practitioner in a Hastings doctors’ clinic. He is facing 13 criminal charges relating to alleged indecent assaults against four of his patients. The complainants allege that Dr Lim touched them inappropriately while they were sedated for minor surgery.
[2] After the complaints were made, the Medical Council of New Zealand suspended Dr Lim’s practising certificate on an interim basis, pending further investigation and the completion of criminal proceedings against Dr Lim, under s 69 of the Health Practitioners Competence Assurance Act 2003. Dr Lim appealed the interim decision to suspend his practicing certificate to the District Court at Wellington, and obtained stay of the suspension (subject to conditions) pending the
appeal. On 15 February 2016, Judge WK Hastings dismissed the appeal.1
[3] Dr Lim now seeks leave to appeal that decision to this Court and seeks a continued stay of his suspension pending determination of the appeal.
[4] For the reasons given below, I dismiss the application for leave to appeal and refuse the stay application. I have decided that the proposed grounds of appeal do not raise questions of law that are of general or public importance, and I see no risk of a miscarriage of justice. I order that the effect of this judgment be stayed, subject to the current conditions, until 8am on Monday, 11 April 2016 to allow Dr Lim and his employer to make alternative arrangements for the care of Dr Lim’s patients.
Background
[5] I take the background facts to be those described by Judge Hastings in the appealed decision. Dr Lim qualified as a medical practitioner in Scotland in 2001 and has worked as such in New Zealand since 2006. In 2014, he practised at a clinic called The Doctors Hastings; the Department of Corrections; and at an aged
care facility called Third Age Care.
1 Lim v Medical Council of NZ [2016] NZDC 2149.
[6] In September 2014, an 18-year old high school student complained to the Police that Dr Lim committed a sexual offence against him. The student claimed that the offence occurred while he was consciously sedated with Midazolam so Dr Lim could treat his dislocated finger. The Police began an investigation, and notified the Medical Council of the complaint. Dr Lim agreed with the Medical Council to practise under conditions which included not using conscious sedation and having a chaperone present during consultations.
[7] In December 2014, the Police uplifted Dr Lim’s files related to the sedation
procedures he had undertaken. They interviewed his other patients. In February
2015, a 24-year old male made an allegation that, in April 2014, he was indecently assaulted by Dr Lim while sedated for the treatment of an abscess. On 27 May 2015, Dr Lim undertook not to practise until the Council considered the new allegation.
[8] Section 69 of the HPCA Act gives the Council the power to suspend a doctor or impose conditions on practise where criminal or disciplinary proceedings are pending and the doctor is alleged to have engaged in conduct that casts doubt on the appropriateness of the doctor’s conduct in his or her professional capacity. On
29 May 2015, the Council sent Dr Lim a letter proposing to suspend Dr Lim’s practising certificate under s 69. As required by the provision, the Council gave Dr Lim reasons for the proposed suspension. The Council decided to suspend Dr Lim on 17 June 2015, by the chair’s casting vote.
[9] Dr Lim filed a notice of appeal against that decision in the District Court, under s 106 of the HPCA Act. He also filed a without notice application to stay the suspension pending appeal. Judge Tuohy granted an interim stay order on 3 July
2015. In lieu of the suspension, the Court imposed conditions on Dr Lim’s practice. He was required to have a chaperone present at all consultations, log all consultations, consent to the Council’s monitoring of his conditions, and waive any privacy or employment rights that might hinder such monitoring.
[10] The Council abandoned its application to discharge the interim stay order, and in September 2015, Dr Lim agreed to the publication of the order on the Medical
Council’s register. He ceased employment at The Doctors Hastings on 15 October
2015.
[11] On 3 November 2015, the Police filed 13 charges against Dr Lim in the Hastings District Court. Five charges were of stupefying and eight were of indecent assault. Some of these charges resulted from further allegations made by two new complainants; both were young males claiming to be indecently assaulted by Dr Lim while they were sedated for minor surgical procedures. The summary of facts also included allegations that Dr Lim deliberately attempted to separate the complainants from their chaperones before committing the indecent assaults. Dr Lim has pleaded not guilty to all charges and strongly denies any wrongdoing. He has elected trial by jury. As I understand it, the District Court trial is unlikely to take place until the end of this year and, according to Mr Waalkens QC, probably not until the first quarter of
2017. Either way, resolution of the prosecution is a considerable way off.
[12] On 13 November 2015, the Medical Council informed Dr Lim by letter, with reasons, of a renewed proposal to suspend his practising certificate. Dr Lim made submissions through his counsel on 4 December 2015 and the Council suspended Dr Lim’s practising certificate for a second time on 14 December 2015 (“the second suspension decision”). The reasons largely related to public protection and the ineffectiveness of the conditions in ensuring this. The Council also stated that, in “the clinical experience of the medical practitioner members of the Council, there was no clinical basis for the use of sedation of the type used by Dr Lim in the circumstances in which any of the patients presented to him”. The concerns about sedation had not been expressed in the 13 November letter.
[13] Dr Lim filed an amended notice of appeal to incorporate this new decision, together with a fresh stay application. The stay was granted by Judge Tuohy on
18 December 2015, pending the hearing of the appeal by the District Court.
The appeal decision
[14] Judge Hastings heard the appeal on 19 January 2016 at the Wellington
District Court. The Council opposed the appeal. Dr Lim’s grounds of appeal were:
(a) The Council breached s 69(3) of the HPCA Act by failing to give Dr Lim adequate notice of its reasons for the second suspension decision, and failing to give Dr Lim a reasonable opportunity to be heard. This was in relation to the Council’s conclusions about the appropriateness and clinical basis of the sedation used by Dr Lim.
(b)It was unreasonable for the Council to conclude the risk to public safety could not sufficiently be mitigated with conditions on Dr Lim’s practice, rather than suspension.
(c) The Council failed to consider the effect of the suspension on Dr Lim and on his employer, Third Age.
[15] The parties also disagreed about the appropriate approach to the appeal. Dr Lim’s counsel submitted that the general approach to appeal should apply, whereas the Council submitted that the appeal should be treated as an appeal against discretion.
The District Court Judge’s decision
[16] On 15 February 2016, Judge Hastings issued his reserved decision dismissing the appeal and upholding the Council’s decision to suspend Dr Lim.2 The Judge began by accepting Dr Lim’s submissions and applying the general approach to appeal stated in Austin, Nichols & Co v Stitching Lodestar.3 It is not disputed by the parties that Austin, Nichols applies to this application.
[17] The Judge then considered the grounds of appeal. He listed nine principles that Palmer J had determined to be relevant to the determination of disciplinary penalties under the HPCA Act.4 It was said that penalties under the HPCA Act must:
(a) protect the public (including by way of deterrence of other health professionals from offending in a similar way);
2 Lim v Medical Council of New Zealand [2016] NZDC 2149.
3 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 TSM v Professional Conduct Committee [2015] NZHC 3063 at [16].
(b)facilitate the setting of professional standards of propriety and professional conduct;
(c) punish the health practitioner;
(d)rehabilitate and reintegrate the health practitioner into the profession if the practitioner is capable of that;
(e) be comparable with the penalty imposed on others in similar circumstances;
(f) be based on assessment of the offending behaviour against the spectrum of penalties available, with the maximum penalties being reserved for the worst offences;
(g)involve imposition of the least restrictive penalty that can be reasonably imposed in the circumstances;
(h) be fair, reasonable and proportionate in the circumstances; and
(i)have its individual components considered together so that the total penalty is assessed against the above principles.
[18] The Judge immediately followed this list of principles with the following remarks:
[48] Many of these criteria are less applicable to interim decisions such as this. There does, however, still need to be an assessment of the health professional’s behaviour that complies with the statute and with natural justice to produce an interim penalty decision that protects the public, facilitates the setting of professional standards of propriety and conduct, and that is fair, reasonable and proportionate in the circumstances. Punishment, deterrence, and parity become relevant if the Council makes a penalty decision under s 101.
[19] He then turned to consider the grounds of appeal. The first ground concerned whether the Council gave Dr Lim sufficient notice for its claim that he misused
sedatives.5 The Judge concluded that the Council did not give Dr Lim sufficient notice, and that as a consequence Dr Lim had no opportunity to address this matter in his submissions to the Council. The Judge then considered affidavits from expert practitioners who provided their opinion on the use of Midazolam in those circumstances. The affidavits were conflicting. The Judge made his own assessment of the affidavits, and concluded that that Dr Lim’s used of sedation was not appropriate in the circumstances, and that “it was open for the Council to have reached the same conclusion”. The Judge, therefore, dismissed this ground of appeal.
[20] The second ground of appeal concerned whether it was unreasonable of the Council to conclude that the risk to public safety could not sufficiently be mitigated with conditions on practise, rather than suspension. The Judge considered the evidence, and concluded that the Council’s decision could not be characterised as “plainly wrong” and that the Council was not unreasonable in reaching the conclusions it did. The ground of appeal also failed.
[21] The third ground of appeal was whether the Council failed to consider the effect of the suspension on Dr Lim and on his employer. The Judge noted judicial comment on the similar matter of lawyers’ disciplinary appeals. Many cases have had to balance the undue harshness of suspension with the need to uphold professional standards and mitigate the risk to the public. The Judge applied authorities which prioritised the protection of public health and safety over the
harshness of suspension.6 Although the Judge considered that the Council did not
appear to have overtly considered the harm to Dr Lim and his employer, this ground of appeal failed because the principles of public protection and the maintenance of professional standards meant that the decision was appropriate and reasonable.
[22] Judge Hastings dismissed the appeal but suspended the effect of the decision for two weeks to allow Dr Lim and his employer to make necessary arrangements.
5 Under s 69(3) of the HCPA Act, the Medical Council was required to inform Dr Lim of its concerns and give him a reasonable opportunity to make written submissions and be heard on the matter.
6 Bolton v Law Society [1994] 1 WLR 512 (CA); Shahadat v Westland District Law Society [2009] NZAR 661 (Full HC).
[23] Section 113 of the HPCA Act, which governs Dr Lim’s leave application, confines second appeals to questions of law. It also imports the requirements for leave to appeal from pt 6 of the Criminal Procedure Act 2011, meaning that leave must not be granted unless the court is satisfied that:7
(a) the intended appeal involves a matter of general or public importance; or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
Grounds of application for leave
[24] The proposed questions of law for appeal can be refined down to four general grounds:
(a) Consideration of irrelevant factors: Did the Judge apply irrelevant factors when considering the imposition of an interim suspension and when considering the effect of a suspension on the applicant and his employer?
(b)Failure to allow an appeal after finding an error: Did the Judge err in dismissing the appeal after finding that the Medical Council made a procedural error in relation to Dr Lim’s interim suspension?
(c) Unreasonable finding of fact: Did the Judge make an unreasonable finding of fact in relation to the expert evidence concerning the procedural use of sedation?
(d)Wrong approach to appeal: Did the Judge wrongly approach certain issues as if he was hearing an appeal against the exercise of a discretion, rather than using the general approach to appeals that is outlined in Austin, Nichols.8
[25] Dr Lim claims that the Judge’s errors have caused a miscarriage of justice, and that leave to appeal should be allowed. He also submits that an appeal would involve matters of public importance for all health practitioners because it will be the first time the Court has considered the test for interim suspensions under s 69 of the HPCA Act.
[26] The Medical Council opposes the application for leave to appeal. It submits that the some of the proposed grounds of appeal advanced by Dr Lim do not constitute questions of law as required by s 113 of the HPCA Act. Moreover, it submits that none of issues in this case raise matters of public importance, and there is no risk of a miscarriage of justice to Dr Lim.
Did Judge Hastings direct himself to irrelevant considerations?
[27] For Dr Lim, Mr Waalkens QC submits that Judge Hastings wrongly directed himself in his reliance on the factors for the imposition of disciplinary penalties set out in TCM v Professional Conduct Committee9 by applying the principles of deterrence, setting professional standards and punishing the health professional to this case. He points to Judge Hastings’s observation10 that many of the criteria identified in that case “are less relevant” which, Mr Waalkens submits, must mean that the Judge thought, incorrectly, that they were relevant to interim suspensions to some degree.
[28] I am not persuaded, however, that the Judge erred in that way.11 It might have been preferable for Judge Hastings to make it clear he was considering the penalty criteria identified in the cases by analogy, where appropriate, but I am satisfied that is what he did. The Judge identified in the challenged paragraph that
interim decisions “such as this” should protect the public, facilitate the setting of
9 Above, n 4 and set out at [17] above.
10 Quoted at [18] above.
11 Although the Judge inadvertently referred to the factors relevant to producing an interim penalty decision, rather than an interim suspension decision, I am satisfied from what the Judge said in the paragraphs following that comment, and from reading the judgment as a whole, that that was merely a slip of the tongue.
professional standards of propriety and conduct, and be fair, reasonable and proportionate in the circumstances, noting that punishment, deterrence and parity “become relevant” if a penalty decision is made. Later, the Judge clarified what he meant by the principle of facilitating the “setting of professional standards” by restating it to mean, in the context of interim suspension, the application of professional standards so as to maintain public confidence in the medical system,
rather than the creation of standards for professional conduct.12
[29] I do not consider Judge Hastings was wrong to take the maintenance or application of professional standards into account in determining whether suspension was warranted. It is an aspect of the consideration of the need for public protection, to which he referred. There cannot be any argument that public protection and proportionality are relevant factors in suspension decisions. I am not persuaded that there is an arguable case that a miscarriage of justice may have occurred because of the way the Judge described the factors relevant to a suspension decision.
[30] Although there has not been focused judicial consideration of the requirements for suspension under s 69 of the HPCA Act, I am not satisfied that a second appeal this case ought to be allowed for that purpose. The decision of the District Court Judge was essentially one involving the application of principles upon which there cannot be any serious debate, and I do not think this proposed ground of appeal raises a question of law having broad application beyond the circumstances of
this particular case.13
Did Judge Hastings err in dismissing the appeal after upon finding that Medical
Council made a procedural error?
[31] Mr Waalkens QC submits that the Judge should have immediately allowed the appeal once he had identified the Medical Council’s procedural error in failing to inform Dr Lim about its concerns relating to the misuse of anaesthetics. I accept, however, the submission for the Medical Council that this ground of appeal is not arguable. The Judge applied the approach to general appeals outlined by the Supreme Court in Austin, Nichols and both parties now accept that this approach was
correct for this case. 14 In that case, the Supreme Court held that, on a general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.15 The Court also said:16
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is in error for the High Court to defer to the lower court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[32] This was not a judicial review proceeding, where procedural errors and erroneous findings often lead to referral back to the decision-maker. The Judge was entitled to come to his own view about the alleged misuse of sedation and his finding of a procedural error did not require him to allow the appeal.
[33] There is no question of law arising from this point.
Did Judge Hastings make an unreasonable finding of fact?
[34] Dr Lim seeks leave to appeal on the ground that the Judge unreasonably found that Dr Lim’s use of sedation was not clinically indicated. He submits that the Judge mishandled the three affidavits from the expert witnesses concerning the matter, and came to an unreasonable conclusion in accepting the evidence from the evidence of one expert.
[35] The determination of a fact is not amenable to an appeal which is confined to questions of law. It will only become a question of law if the conclusion was clearly insupportable or untenable;17 that occurs only rarely. There would have to be a serious issue with the finding of fact, such where there the conclusion is unsupported
or even contradicted by the evidence.18
14 Above, n 2.
15 At [5].
16 At [16].
17 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]–[26].
[36] The expert witnesses did not agree about whether sedation was clinically indicated in any of the cases about which a complaint has been made. One of the experts considered Dr Lim’s use of sedation to be inappropriate, whereas one thought Dr Lim used sedation in an appropriate and standard matter. The other expert’s evidence was of a more general nature and discussed when it was appropriate to use Midazolam for procedural sedation. The Judge determined that he preferred the view that the sedation was inappropriate.
[37] In this case, where the Judge was faced with conflicting opinions from expert witnesses, it cannot be said that the Judge’s decision to prefer one view over another was clearly insupportable or untenable. Accordingly, it cannot be said that this proposed ground of appeal raises any appealable question of law.
Did the Judge apply the wrong approach to appeal to certain issues?
[38] Although agreeing with the Judge’s determination that Austin, Nichols should be followed, Mr Waalkens submits that, in relation to two particular issues, the Judge did not correctly apply the relevant principles. He argues that the Judge inadvertently applied the test for an appeal against the exercise of judicial discretion.
[39] First, counsel submits that the Judge allegedly applied the wrong approach when he considered Dr Lim’s alleged misuse of sedation. He argues that the Judge’s conclusion that the finding of inappropriate sedation was open to the Medical Council demonstrates his error. He claims that such language indicates that the Judge did not come to his own view about the appropriateness of sedation, but merely deferred to the Medical Council on the basis that it was entitled to reach its conclusion.
[40] Second, Mr Waalkens says the Judge erred in making an assessment about whether imposing conditions on Dr Lim’s practise would sufficiently mitigate the risk to public health and safety by permitting Dr Lim to continue to practise subject to stringent conditions. The Judge concluded that he did not think that the Medical Council’s decision could be characterised as plainly wrong. The language used is said by counsel to indicate that the Judge did not form his own view on the appeal,
but merely assessed whether the Medical Council’s decision was one which was
available.
[41] I recognise the importance of appellate courts using language with precision and care, and that there are standard expressions which are used to indicate the particular principles which are being applied on appeal, depending on the nature of the appellate inquiry. But the wording of a decision should not be interpreted in an unduly technical way and questions of law cannot be manufactured out of infelicitous language, viewed in isolation from the overall reasoning. It is the
substance of a decision which is to be considered.19 In this case, it is unfortunate
that the District Court Judge sometimes used language that was inconsistent with the Austin, Nichols approach that he had expressly adopted after careful analysis of the parties’ arguments. But considered as a whole, the reasoning used by the Judge indicates that he came to his own view on whether the proposed conditions would adequately address the risk to public safety of permitting Dr Lim to remain in practice.
[42] The legitimate concern of the Medical Council and the District Court was not confined to the risk of like re-offending. I have not overlooked Mr Waalkens QC’s indication that a serious challenge will be made to the way in which the Police went about their investigation, with the attendant risk of suggestions being put to witnesses who, by their own accounts, were under sedation at the times Dr Lim is alleged to have assaulted them indecently. But it would be unrealistic to ignore the fact that there is more than one complainant and that several unrelated patients have made similar complaints about the inappropriate use of sedation by Dr Lim in order to create opportunities for sexual offending. I draw no firm conclusions about the merits of the Police case and none are implied, but if the allegations are true, they indicate that Dr Lim is a practitioner whose judgment is seriously awry and whose ethical standards are seriously deficient.
[43] Reaching his own conclusions on the evidence before him on appeal, Judge
Hastings was entitled to decide, in agreement with the Medical Council, that the
19 Harlen v Chief Executive of the Ministry of Social Development [2015] NZHC 2663; Butler v
Removal Review Authority [1998] NZAR 409 (HC) at 419-420.
complaints should be considered to raise a real risk to public safety that would not be met by permitting Dr Lim to remain in practice pending his trial on criminal charges. The proposed conditions, in the context of Dr Lim’s narrowed employment, may be adequate to prevent sexual offending of the kind alleged, but they do not address the wider concerns about sound judgment and adherence to ethical standards.
[44] Moreover, they would not adequately address the important consideration of public confidence in the medical disciplinary system.
[45] Accordingly, I am satisfied that that no appealable question of law arises from the language the Judge used in expressing his conclusions and that there is no risk of a miscarriage of justice on that account.
Decision and costs
[46] I am not persuaded that any of the proposed grounds of appeal meets the test for the bringing of a second appeal against the Council’s decision and I refuse the application for leave to appeal accordingly.
[47] I reserve the question of costs for the exchange of memoranda. The respondent shall have until 22 April 2016 to file and serve any application for costs. The applicant shall have until 20 May 2016 to file and serve any reply. Costs shall then be determined on the papers unless the Court directs otherwise.
Consequences – temporary stay
[48] Because Dr Lim has been unsuccessful in obtaining leave to appeal, the issue of a stay pending appeal does not arise. I accept, however, that lifting the current stay immediately upon the release of this judgment would impose an unreasonable burden on Dr Lim’s employer and his patients. I am mindful also of the effect of the Easter break on the employer’s ability to re-arrange its delivery of patient care.
[49] Balancing these particular interests against the wider public interest, I direct that the current order staying the effect of the Medical Council’s decision shall
continue in force, subject to the current conditions, until 8am on Monday, 11 April
2016 to allow Dr Lim and his employer to make alternative arrangements.
Confidentiality
[50] The names of the complainants have not been referred to in this judgment. Because of the statutory prohibition on the publication of their names or identifying particulars in the context of the criminal proceeding, I consider it prudent to restrict access to the Court file. I direct, therefore, that no person shall have access to the Court file (other than this judgment) without the leave of a Judge of this Court. The order shall not apply to counsel or the solicitors for the parties; Dr Lim; and any duly authorised representative of the Medical Council of New Zealand.
Name suppression
[51] At the hearing, I made an order suppressing publication of Dr Lim’s name until the delivery of this judgment. In the criminal proceeding, an interim order for name suppression is in place as a result of an order of the District Court. I understood from counsel that the order was to be reviewed at a dedicated hearing of an application for continued name suppression up to the commencement of the criminal trial.
[52] In the ordinary course of events I would not consider there to be any basis to suppress Dr Lim’s name from publication in the context of this proceeding, and Mr Waalkens properly conceded that view. But counsel and I were agreed that name suppression should be determined by the District Court in the context of the criminal proceedings.
[53] Until the further order of the Court, the name of the applicant and any particulars which might identify him shall not be published in the news media or on the internet or other publicly available database. This order shall not apply to publication in a law report or law digest.
[54] It will be a matter for the respondent to make an application, at the appropriate time, to have the suppression order made in this judgment set aside. Any such application may be referred to any Judge for decision.
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Toogood J
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