MacDonald v Ministry of Health
[2025] NZHC 1002
•30 April 2025
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-30
[2025] NZHC 1002
BETWEEN PHILIP JOHN LOGAN MACDONALD
Appellant
AND
MINISTRY OF HEALTH
Respondent
Hearing: 18 March 2025 Appearances:
D Jones KC for Appellant
T Bain and K Budgen for Respondent
Judgment:
30 April 2025
Reissued:
2 May 2025 (r 11.10 of the High Court Rules 2016)
JUDGMENT OF BOLDT J
Introduction
[1] Before the COVID-19 pandemic, Philip Macdonald was a well-regarded, experienced and highly skilled eye surgeon. Today he no longer practises medicine, and is retraining, in his mid-50s, with a view to a career in IT. He says he has no intention to return to medical practice.
[2] In 2021 Dr Macdonald decided he did not wish to comply with the Ministry of Health’s requirement that practising (and non-exempt) medical practitioners receive the COVID vaccine.1 In December of that year, he wrote to the Medical Council indicating he no longer wished to be registered as a medical practitioner. After unsuccessfully seeking clarification and confirmation, the Medical Council
1 COVID-19 Public Health Response (Vaccinations) Order 2021. Medical practitioners were required to be fully vaccinated by 1 January 2022. The order was revoked on 26 September 2022.
MACDONALD v MINISTRY OF HEALTH [2025] NZHC 1002 [30 April 2025]
deregistered Dr Macdonald on 25 January 2022, meaning he was no longer entitled to practise medicine in New Zealand.
[3] Having relinquished his registration, and being warned he was no longer entitled to practise as a medical practitioner, for the first few months of 2022 Dr Macdonald continued to work, continued to hold himself out as an ophthalmologist and continued to advertise his practice.
[4] In December 2023, Dr Macdonald stood trial on 19 charges under the Health Practitioners Competence Assurance Act 2003 (HPCAA). On 27 May 2024, Judge R J Earwaker found Dr Macdonald guilty on all charges.2 On 17 October 2024, he declined Dr Macdonald’s application for a discharge without conviction under s 106 of the Sentencing Act 2002, and fined him $21,500.3
[5] Dr Macdonald does not contend Judge Earwaker should have acquitted him, nor does he submit the fine the Judge imposed was inherently excessive. Rather, he challenges the decision not to discharge him without conviction. He argues the direct and indirect consequences of his convictions are out of all proportion to the gravity of his offending.
Background
[6] The decline and fall of Dr Macdonald’s career as an ophthalmologist is immensely regrettable. He was admitted to the Royal Australian and New Zealand College of Ophthalmologists in 2002, and there is no evidence he was anything other than a successful and highly competent practitioner in a specialised field. He practised in a private ophthalmology clinic in Napier called Napier Eye Ophthalmology.
[7] Then the pandemic arrived, and Dr Macdonald decided he was unable to accept the official line taken by the Ministry of Health, particularly about the safety and efficacy of the vaccine. He described himself as someone with a “curious mind”, and said he made his own independent study of the development of the vaccine. He gave
2 Ministry of Health v Macdonald [2024] NZDC 10315 [Conviction decision].
3 Ministry of Health v Macdonald [2024] NZDC 24984 [Sentencing decision].
evidence that the speed with which the vaccine was created led him to conclude its developers had to have been “cutting corners on safety”. Dr Macdonald said he believed it “had not been adequately tested by all the norms that [he] was trained on as a medical student and [he] had not been convinced of any mechanisms by which those measures could safely be circumvented”.
[8] Dr Macdonald said he did not feel he could ethically recommend the vaccine to his patients. When the Government directed medical practitioners to receive the vaccine themselves, he said he felt “the country had transcended a number of moral boundaries that [he] held very dear, the right to refuse treatment, the right to inform[ed] consent”. He refused to get vaccinated.
[9] Dr Macdonald made contact with an organisation he described as a “new medical board”, called the Wakaminenga Health Council (WHC). On 13 October 2021, Dr Macdonald signed up.
[10] WHC purported to be a “tikanga based” alternative to the Medical Council. Dr Macdonald said he studied its code of ethics and its charter and became convinced that registration with WHC provided a legitimate and lawful alternative to registration with the Medical Council. He sought advice from another organisation which called itself Nga Tikanga Law Society or the Māori Law Society (MLS).4 No actual lawyers appear to belong to the MLS. Rather, drawing on garbled interpretations of recent Supreme Court decisions, and infused with language common in the sovereign citizen movement, it appears the MLS advised Dr Macdonald that a separate Māori legal authority exists in New Zealand which was, among other things, free to set up bodies to regulate affiliated medical professionals.
[11] WHC “registered” Dr Macdonald and issued him with a document that purported to be a practising certificate. It bore the same registration number as his old Medical Council registration.
4 The “Māori Law Society” which purported to give advice to Dr Macdonald is not to be confused with Te Hunga Rōia Māori o Aotearoa, also known in English as the Māori Law Society. The latter organisation is a highly respected association which represents Māori in the legal profession, and has a broad membership which includes Maori lawyers, legal academics, judges and law students.
[12] In a document which appears to have been drafted by the MLS, Dr Macdonald sent the Medical Council a notice indicating he wished to cancel his registration. It read:
As Settlor I: Philip-john-logan: …Macdonald. (Dr Philip John Logan Macdonald) hereby annul, abrogate and cancel this trust registration No: 18973 of the Te Kanuihera Rata o Aotearoa (Medical Council of New Zealand) under the rules and principles of Equity.
Any further attempts of communication in regards to my obligation to registration No: 18973 of the Te Kanuihera Rata o Aotearoa (Medical Council of New Zealand) shall determine that the named person in communication has interpreted the documents in their own interest to become a constructive trustee. Slander will be dealt with in The High Court of Justice.
[13] The Medical Council wrote to Dr Macdonald on 10 and 18 January 2022 seeking confirmation that he wished to cancel his registration. It explained the consequences, including that he would no longer be able to practise medicine in New Zealand or advertise himself as a health practitioner. When Dr Macdonald did not respond, he was deregistered on 25 January 2022.
[14] Dr Macdonald claimed he received advice from the WHC and named a man who described himself as a “clerk” with the MLS. Dr Macdonald said he genuinely believed he was entitled to continue practising outside the jurisdiction of the Medical Council, and accordingly that he was not committing an offence when he continued to work as an ophthalmologist for several months after he was deregistered.
[15] Dr Macdonald carried on practising as he had before. He did not inform his patients that he was no longer a registered medical practitioner. The Ministry of Health sent him a cease and desist letter on 17 February 2022. It wrote again on 12 April 2022 informing him he was under investigation. In that letter, the Ministry referred to WHC and said it “does not have authority to act as an authority responsible for the registration and oversight of practitioners of a particular health profession”.
[16] Dr Macdonald ignored the letters. At trial he said they contradicted the advice he had received from the MLS, and that he genuinely believed there was a parallel legal authority, derived from tikanga Māori, which entitled him to practise. He advertised his services as an ophthalmologist as late as May 2022 and continued
treating patients until July. Dr Macdonald did not tell his patients he was no longer a registered practitioner, or that he was unvaccinated. Once it realised Dr Macdonald was no longer registered, Southern Cross Health Insurance stopped reimbursing patients for their treatment at his clinic, though in at least one instance Dr Macdonald refunded the patient’s fees when that occurred.
[17] Other difficulties arose, particularly with Dr Macdonald’s ability to write prescriptions; once he was deregistered he could no longer legally prescribe medication. The WHC wrote to one pharmacist purporting to authorise her to continue filling Dr Macdonald’s prescriptions. When that did not work, Dr Macdonald either relied on his anaesthetist to issue prescriptions, or issued medication directly to patients, advising them to seek repeat prescriptions through their General Practitioner.
Charges and trial
[18] Dr Macdonald was charged with 13 charges of claiming to be an ophthalmologist when he did not hold a practising certificate,5 five of performing a restricted activity when he was not a health practitioner,6 and one of using a title which stated or implied he was an ophthalmologist when he was not.7
[19] The charges were regulatory in nature; all were offences of strict liability. As a result, it was not necessary for the prosecution to show Dr Macdonald was acting in deliberate breach of the HPCAA. The Ministry was required only to prove he breached the HPCAA’s requirements. The burden then shifted to Dr Macdonald to prove, on the balance of probabilities, that the offending involved a total absence of fault on his part.8
[20] Dr Macdonald did not challenge the facts underpinning the charges. Rather, he said he genuinely believed he was allowed to continue to practise. Put another way, he argued he had exercised all reasonable care to prevent the offending from occurring,
5 Health Practitioners Competence Assurance Act 2003, s 7(2), maximum penalty $10,000 fine.
6 Section 9(4), maximum penalty $30,000 fine.
7 Section 7(1), maximum penalty $10,000 fine.
8 Civil Aviation Department v McKenzie [1983] NZLR 78 (CA) at 85, Rogers v Police [2019] NZCA 94, [2019] NZAR 691 at [8].
and accordingly that he had established the defence of total absence of fault. On Dr Macdonald’s behalf, Mr Jones KC acknowledged Dr Macdonald was mistaken in his belief that the WHC and the MLS were legitimate organisations, but said the offending arose as the result of an honest and reasonable mistake.
District Court findings
[21] In a finding which at first glance appears generous, Judge Earwaker accepted that Dr Macdonald was operating under the mistaken belief he was entitled to continue in practice under the auspices of the WHC.9 Nonetheless, the Judge found the charges proved. While Mr Jones argued Dr Macdonald had made a mixed error of law and fact, the Judge held the mistake was a pure error of law. He observed:
[131] … in my view, Dr Macdonald’s belief that he could legitimately practise under tikanga Māori Customary Law by registering with the WHC was a mistake of law. I do not consider it a mixed question of fact and law. Dr Macdonald making a mistake by thinking he could rely on WHC being a legitimate alternative body does not make this a question of fact, because the WHC was never a lawful body. It was a mistake of law.
[22] Mistake of law is not a defence, either to an offence which requires mens rea,10 or to a strict liability charge of the kind Dr Macdonald was facing.11 It followed Dr Macdonald was unable to show he had taken all reasonable care to prevent the offending, could not establish the defence of total absence of fault.
[23] While he appears to have accepted Dr Macdonald was mistaken about his entitlement to practise, the Judge recorded Dr Macdonald’s acknowledgement that he had not researched the MLS with the same vigour he researched the vaccine.12 He found Dr Macdonald had disregarded a number of significant red flags and embraced the WHC alternative “to the point of wilful blindness”.13 Accordingly the Judge found, in any event, that Dr Macdonald had not taken all reasonable steps to ensure the offending did not occur.14
9 Conviction decision, above n 2, at [131].
10 Crimes Act 1961, s 25.
11 Waaka v Police [1987] 1 NZLR 754 (CA) at 759, R v Cave [2011] NZAR 498 (CA) at 502.
12 Conviction decision, above n 2, at [65].
13 At [137].
14 At [85].
[24] In this Court, Mr Jones acknowledged Dr Macdonald had ignored multiple signs which indicated neither the WHC nor the MLS had a shred of legitimacy. He accepted Dr Macdonald had refrained from seeking proper legal advice before casting his lot in with the WHC. To explain Dr Macdonald’s mindset, Mr Jones referred to Paul Simon’s wonderful lyric from The Boxer — “all lies in jest ‘til a man hears what he wants to hear and disregards the rest”.
Sentencing
[25] Dr Macdonald sought a discharge without conviction. Mr Jones argued the gravity of the offending was low. There was no complaint about the quality of Dr Macdonald’s work over the months he was practising unlawfully; it is common ground he exercised the same care and skill he had shown throughout his many years in practice. He was 55 and had lived an exemplary life until the pandemic. Mr Jones submitted Dr Macdonald made a mistake which had already cost him his career and business, and that he should not continue to be punished for it.
[26] Dr Macdonald has now decided to abandon medicine altogether and is retraining in computer science with the goal of specialising in artificial intelligence. Mr Jones submitted the entry of criminal convictions was likely to make it extremely difficult for Dr Macdonald to find work in his new field. In addition, his convictions will complicate his ability to travel internationally, particularly to the United States.
[27] The Judge declined to discharge Dr Macdonald without conviction.15 He was unpersuaded the adverse indirect consequences Mr Jones predicted were likely to arise. In particular, the Judge observed he was not satisfied the entry of convictions would prevent Dr Macdonald from obtaining employment.16 He held, in any event, that prospective employers were entitled to be informed about the circumstances which led to Dr Macdonald’s departure from the medical profession, and that it was not “the Court’s role to obscure or hide Dr Macdonald’s actions from a future employer or to determine if the convictions are relevant in the IT field.”17
15 Sentencing decision, above n 3, at [73].
16 At [52]–[53].
17 At [53].
[28] Similarly, the Judge found there was no reliable evidence either that Dr Macdonald planned to travel to the United States, or that he would be prevented from travelling there if he chose to do so.18 The offences are all regulatory in nature; none carried a potential term of imprisonment.
[29] The Judge found Dr Macdonald made a “calculated and deliberate decision to keep practising without a practising certificate … having been warned of the risks”.19 The charges themselves did not imply dishonesty. The circumstances of the offending would be “more than capable of explanation to any future employer”.20 He concluded Dr Macdonald had not demonstrated a real and appreciable risk that he would suffer consequences out of all proportion to the gravity of the offending.21
[30] Having decided to enter convictions, the Judge fined Dr Macdonald $1,500 on each of the five charges of performing a restricted activity while unregistered, and
$1,000 on each charge under s 7 (claiming to be an ophthalmologist while not holding a practising certificate and using a title indicating he was an ophthalmologist when he was not). The total fine came to $21,500.22 The Judge awarded the Ministry costs of
$2,000.23
[31] Dr Macdonald makes no complaint about the size of the fine or the award of costs. Indeed, he has undertaken to pay that sum, in full, into his solicitor’s trust account regardless of the outcome of this appeal, with a view to its being applied either to pay the fines and costs or, if he is discharged without conviction, to be paid voluntarily to the Ministry for disbursement to affected patients.24 The sole focus of the appeal is whether Judge Earwaker made an error when he declined to discharge Dr Macdonald without conviction.
18 At [54].
19 At [59].
20 At [59].
21 At [60].
22 At [74].
23 At [75].
24 Mr Jones asked that Dr Macdonald be permitted to make a voluntary payment rather than be ordered to pay the equivalent sum under s 106(3) of the Sentencing Act. He has received advice that a compulsory payment under s 106(3) would have to be declared for immigration purposes and is likely to be treated in the same manner as a fine by United States immigration authorities.
Discussion
[32] An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence. The decision to enter a conviction is the principal focus.25 Section 107 of the Sentencing Act provides the statutory gateway. It reads:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[30] In R v Taulapapa, the Court of Appeal observed:26
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[33] I have some sympathy with Dr Macdonald’s position. The pandemic was a difficult and challenging period. Dr Macdonald performed to his usual high standards as an eye surgeon during the period he was practising unlawfully, and none of his patients was physically harmed. The breakdown in Dr Macdonald’s relationship with the Medical Council has led to the end of a long and successful career as a surgeon.27
[34] Nonetheless, I am not persuaded Judge Earwaker made any error in his analysis. The offending was characterised by a number of aggravating features, not all of which the Judge emphasised.
25 M v Police [2023] NZHC 995 at [45] citing R v Little CA48/82 24 February 1983; R v Moriarty
CA109/84, 10 August 1984; and Richardson v New Zealand Police [2015] NZHC 1431.
26 R v Taulapapa [2018] NZCA 414 citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR
142 at [27]. Footnotes omitted.
27 Dr Macdonald’s decision to retire was voluntary. He chose to deregister, and it would have been open to him, if he wished, to apply to return to practice once the vaccine mandates were lifted.
Gravity of the offending
[35] While the Judge appears to have accepted that Dr Macdonald felt entitled to ignore the careful advice of the Medical Council and the Ministry, the red flags he disregarded could hardly have been more vivid. It would have required astonishing gullibility to believe there was anything lawful or valid about the claims of the WHC or the MLS. No critically-minded practitioner who read the material they provided could have believed either organisation to be a legitimate professional body. The documents they prepared for him were incomprehensible.
[36] It follows that Mr Jones’s reference to The Boxer is apt; I am satisfied Dr Macdonald made a conscious effort to hear only what he wanted to hear, no matter how objectively implausible it was. I am satisfied he knew there was a high likelihood that if he sought advice from a real lawyer, he would have been told to stop practising immediately. Wilful blindness is a species of recklessness, and the recklessness Dr Macdonald displayed was extreme.
[37] Moreover, while Dr Macdonald kept working without incident while unregistered, his offending was far from victimless. The mandates in force at the time required all non-exempt medical practitioners to receive two doses of the vaccine before the end of 2021. It followed that patients were entitled to infer, from the fact he was still working, that he was vaccinated. He did not suggest otherwise.
[38] In deciding to practise while (effectively) deceiving his patients about his vaccination status, Dr Macdonald made his own risk calculation, but did not tell any of those who stood to be affected or ask them whether they consented to receiving treatment from an unvaccinated surgeon. Similarly, he did not inform his patients he was no longer registered with the Medical Council. Those omissions mean Dr Macdonald breached the trust his patients were entitled to place in him.
[39] In addition, pharmacists play an important role in our health system; there are good reasons why medical practitioners do not deal directly with medication. Nonetheless, Dr Macdonald decided to bypass the pharmacies and dispense
medication himself. As an experienced practitioner he must have known that course was unacceptable and unsustainable.
[40] One of the most serious aggravating factors was Dr Macdonald’s role in arranging for a “notice” to be sent to the home address of the Ministry of Health enforcement officer who was investigating his case. While the document itself was drafted by the MLS, Dr Macdonald acknowledged he asked that it be delivered.
[41] The notice relied on many common tropes of pseudo law. It accused a number of officials, including the Ministry employee to whom it was addressed, of “coercion and conspiracy to bring about administration of poison”. It purported to prohibit further inquiry into Dr Macdonald and to order the Chief High Court Judge to investigate. I struggle to accept an experienced medical practitioner could have believed it was a legally valid or legitimate document. Moreover, the targeting of the investigator at her home address, combined with baseless accusations of wrongdoing and threats of legal action, carried an unmistakable air of intimidation.
[42] Mr Jones agreed the notice was unacceptable. Moreover, despite having had 18 months to reflect on his actions, Dr Macdonald was unrepentant when asked about it at trial. He said that a private investigator had been engaged to track down the home address of the employee concerned, and added, “well I assumed that she didn’t have any personal concern about that because she was quite happy to disclose my personal information”. The personal targeting of a public servant who was doing her job aggravated the offending considerably. It might have been ameliorated by an appropriate apology, but none has been forthcoming.
[43] Indeed, Mr Bain, for the Ministry, noted Dr Macdonald has never expressed any insight or remorse. Mr Jones agreed but blamed the nature of our adversarial system. He suggested that because Dr Macdonald was defending the charges, there was a risk any expression of remorse might compromise his case.
[44] I do not accept that submission. Mr Jones, in his characteristically persuasive manner, sought to convince both the sentencing Judge and me that Dr Macdonald had fallen victim to fringe organisations which misled him into believing he was still
entitled to practise. In those circumstances a frank acknowledgement that he had made an honest but serious mistake would have enhanced rather than compromised his defence.
[45] Instead, Dr Macdonald struck a defiant tone. Despite all that had happened since mid-2022, including a decision of this Court confirming the WHC lacked any legal authority,28 Dr Macdonald said he believed the legitimacy of the WHC was “still in play”. In evidence he expressed no regret about his actions, placing the blame on the Government and others, such as pharmacists and Southern Cross, who acted against him in a “co-ordinated wave”. Nor did he distance himself from the reference, in the document delivered to the Ministry investigator to “coercion and conspiracy to bring about the administration of poison”.
[46] In assessing the gravity of the offending, the Court examines both the offending itself and any relevant aggravating and mitigating factors. As already noted, I consider the offending was aggravated by Dr Macdonald’s recklessness, the repeated breaches of trust, the attempt to intimidate the Ministry investigator and the subversion of the conventional system for dispensing medication. He did not plead guilty, and even after three years has shown no contrition or regret. It follows the only relevant mitigating factors are Dr Macdonald’s longstanding good character and the fact he now feels unable to return to medical practice. Overall, I agree with the Judge that the offending was moderately serious.
Indirect consequences of conviction
[47] I agree with Judge Earwaker that the evidence does not disclose a real and appreciable risk that Dr Macdonald’s plans for overseas travel will be disrupted, or that he will suffer unfair hardship when seeking employment as an IT professional.29
[48] The offences were regulatory in nature. None of the charges involves any element of dishonesty, and the maximum penalty in all cases was a fine. Dr Macdonald’s expert witness, Ms Sadlier, attested that a criminal conviction can
28 See Ministry of Health v Whakaminenga Kahunihera Hauroa | Health Council [2023] NZHC 1683.
29 Sentencing decision, above n 3, at [53]–[54].
prevent a person from entering the United States “if the conviction is for a crime involving moral turpitude”. None of Dr Macdonald’s convictions involve any element of moral turpitude.
[49] While Ms Sadlier suggested a consular official may nonetheless overreact, and make a “snap discretionary denial”, I agree with the Judge that her evidence in that regard is speculative. Dr Macdonald is entitled to presume United States officials will consider any application fairly.
[50] As to Dr Macdonald’s employment prospects, regulatory offending carries far less stigma than conventional offending involving dishonesty, violence or drugs. In any event, I agree with the Judge; employers are entitled to know all relevant aspects of Dr Macdonald’s background. His departure from the medical profession and his decision to retrain was a seminal moment in his life, which employers are entitled to understand.
Conclusion
[51] A discharge without conviction may only be entered if the direct and indirect consequences of a conviction are “out of all proportion” to the gravity of the offence. I am satisfied Dr Macdonald’s offending represented a moderately serious breach of the HPCAA. It carries no inherent implication of dishonesty, and while Dr Macdonald behaved poorly, especially towards the Ministry investigator, the charges themselves do not reflect adversely on his character. Rather, they show an unwillingness to comply with a regulatory regime he regarded as unreasonable.
[52] In those circumstances, I do not consider Dr Macdonald has established a real and appreciable risk to his ability to travel internationally, nor am I persuaded his convictions will unduly or unfairly affect his employment prospects. In any event, I do not consider the modest stigma of 19 regulatory convictions to be out of all proportion to the gravity of the offending.
[53] It follows Judge Earwaker made no error when he declined Dr Macdonald’s application for a discharge under s 106 of the Sentencing Act. The appeal is dismissed.
Boldt J
Solicitors:
Crawford Nelson Law, Auckland for Appellant
Luke Cunningham Clere, Wellington for Respondent
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