P v Medical Practitioners Disciplinary Tribunal HC Wellington CP58/01

[2001] NZHC 704

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP58/01

ORDER SUPPRESSING PUBLICATION OF THE NAME OF THE APPLICANT

IN THE MATTER of an application for judicial review pursuant to the Judicature Amendment Act 1972

BETWEEN P
Applicant

AND THE MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Respondent

Hearing: 18 June 2001

Counsel: A H Waalkens for the Applicant
B A Corkill for Respondent (given leave to withdraw)
K P McDonald QC For Complaints Assessment Committee

Judgment: 2 August 2001

JUDGMENT OF ELLIS J

Solicitors:
Bartlett Partners, Wellington for Applicant

The application

[1] At all material times until 20 December 2000 the applicant was a registered medical practitioner under the Medical Practitioners Act 1995. On 20 December 2000 the applicant’s name was removed from the Register by order of the respondent Tribunal. He thereupon ceased to be a registered medical practitioner. On 30 November 2000 the Complaints Assessment Committee, a body constituted pursuant to s 88 of the Act, issued a disciplinary charge against the applicant alleging he was guilty of conduct unbecoming a medical practitioner in respect of an incident which occurred prior to his name being removed from the Register. The applicant contends that as he was no longer a registered medical practitioner he could not be so proceeded against. The respondent Tribunal determined on 27 February 2001 that it had jurisdiction to hear the complaint. The Court is asked to resolve the question of jurisdiction.

The significant sections of the Act

“102. Laying of charge before Tribunal - (1) A charge against a medical practitioner may be laid before the Tribunal by -

(a) The Director of Proceedings, in any case where -

(i) After conducting an investigation under Part IV of the Health and Disability Commissioner Act 1994, the Health and Disability Commissioner is of the opinion that any action (within the meaning of that Act) that was the subject-matter of the investigation, being the action of that medical practitioner, was in breach of the Code of Health and Disability Services Consumers’ Rights for the time being in force under that Act; and

(ii) The Director of Proceedings decides, pursuant to section 49 of that Act, that proceedings should be taken under this Part of this Act against that medical practitioner; or

(b) A complaints assessment committee, pursuant to section 93 or section 94 of this Act.

(2) Where, under subsection (1) of this section, a charge is laid before the Tribunal, the chairperson of the Tribunal shall, as soon as reasonably practicable after the laying of the charge, convene a hearing of the Tribunal to consider the charge.

(3) Every charge laid under subsection (1) of this section shall include a statement to the effect that the Director of Proceedings or complaints assessment committee, as the case may be, has reason to believe that a ground exists entitling the Tribunal to exercise its powers under section 109 of this Act.

(4) Any charge laid under this section shall be prosecuted at the hearing, -

(a) Where the charge is laid by the Director of Proceedings, by the Director of Proceedings; or

(b) Where the charge laid by a complaints assessment committee, by that complaints assessment committee, -

who for that purpose may be represented by counsel or otherwise.”

“103. Notice of disciplinary proceedings to be given to practitioner - (1) Where the chairperson of the Tribunal is required to convene a hearing of the Tribunal to consider a charge against a medical practitioner, he or she shall forthwith cause to be given to the practitioner a notice -

(a) Stating that the Director of Proceedings, or a complaints assessment committee, as the case may be, has reason to believe that a ground exists entitling the Tribunal to exercise its powers under section 109 of this Act; and

(b) Containing such particulars as will clearly inform the practitioner of the substance of the ground believed to exist; and

(c) Specifying the particulars of the charge; and

(d) Specifying a date (being not less than 20 working days, and not more than 60 working days, after the date on which the notice is received by the practitioner) on which the Tribunal intends to hear the matter.

(2) Where applicable, the chairperson of the Tribunal shall, without delay, cause to be given to the complainant a copy of the notice required to be given to the medical practitioner under this section.

(3) Every notice given to a medical practitioner under this section shall require the practitioner to notify the Tribunal in writing, not later than a specified date (being not less than 10 working days after the date on which the notice is received by the practitioner) whether or not he or she wishes to be heard by the Tribunal, either personally or by his or her representative.

(4) If a practitioner fails to notify the Tribunal as required by a notice under this section, the practitioner shall be entitled to appear and be heard at the hearing only on such conditions as to payment of costs and expenses or otherwise as the Tribunal thinks fit and so orders.”

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

(a) Has been guilty of disgraceful conduct in a professional respect; or

(b) Has been guilty of professional misconduct; or

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

(d) Has been convicted of an offence against the Health Act 1956, the Misuse of Drugs Act 1975, the Contraception, Sterilisation, and Abortion Act 1977, the Medicines Act 1981, the Coroners Act 1988, the Accident Rehabilitation and Compensation Insurance Act 1992, the Births, Deaths, and Marriages Registration Act 1995, or the Accident Insurance Act 1988; or

(e) Has been convicted by any court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of 3 months or longer, and the circumstances of that offence reflect adversely on the practitioner’s fitness to practise medicine; or

(f) Has practised medicine outside the extent permitted by, or not in accordance with the conditions of, his or her registration or any practising certificate held by him or her; or

(g) Has breached any order of the Tribunal made under section 110 of this Act, -

the Tribunal may make any 1 or more of the orders authorised by section 110 of this Act.

(2) For the purposes of subsection (1) of this section, a medical practitioner is guilty of professional misconduct if that medical practitioner, -

(a) Breaches section 11 of this Act; or

(b) Being the holder of probationary registration, general registration, or vocational registration, practises medicine while not holding a current practising certificate.

(3) The Tribunal shall not make an order under section 110 of this Act in respect of any offence for which a medical practitioner has been convicted before the date of the practitioner’s registration if, at that date, the Council was aware of the conviction.

(4) No person shall be found guilty of a disciplinary offence under this Part of this Act merely because that person has adopted and practised any theory of medicine or healing, if in doing so the person has acted honestly and in good faith.”

Intervening events

[2] The matter has since been complicated as on 30 May 2001 the applicant was reregistered with limitations imposed on his mode of practice. While I was told that decision is subject to appeal, it was common ground before me that by being registered again, the applicant became subject to the jurisdiction of the Tribunal in respect of the charge in question, so subject to the outcome of the appeal the question posed has become moot.

The applicant’s submissions

[3] Mr Waalkens for the applicant submits that as “medical practitioner” is defined in s 2 of the Act as a person registered under the Act, and the sections defining the disciplinary powers of the Tribunal refer to charges against a “medical practitioner”: s 102, and notice being given to the “medical practitioner”: s 103 and grounds upon which a “medical practitioner” may be disciplined: s 109; and penalties that may be imposed on a “medical practitioner”: s 110, all these powers cannot be exercised against a person who is no longer registered and so a “medical practitioner” for the purposes of the Act. Mr Waalkens also draws attention to s 44, which allows a medical practitioner to apply to have his or her name removed from the Register, but expressly provides in ss 3 that removal of a practitioner’s name does not affect that practitioner’s liability for any act done or default made before the date of the removal. Section 45 deals with removal of names from the Register by order of the Medical Council. It too has the same saving provision in ss (4).

[4] Further, Mr Waalkens accepts that when the charge was laid on 30 November 2000, the applicant was still a medical practitioner and subject to the provisions of the Act as he was at the time of the alleged misconduct. So the essential submission is that by removing his name from the Register, jurisdiction to deal with him further ceased.

[5] When the matter was argued before the Tribunal, the above argument was urged, and further Mr Waalkens submitted the purpose of the Act was limited in the present context to protecting the public from unsuitable practitioners and that was achieved when his name was removed from the Register. Mr Waalkens also relied on the well known policy of the law that penal provisions in statutes are to be strictly construed in favour of the subject: Halsburys Laws of England, 4th ed (re-issue) vol 44(1) para 1456.

The Committee’s submission

[6] Ms McDonald for the Complaints Assessment Committee submitted that the Act should be interpreted to mean that all that was required was that the practitioner charged should be a registered medical practitioner at the time the alleged incidents occurred and that the remedial nature of the Act and its predecessors was to maintain standards of professional conduct by practitioners throughout the period of practice and by doing so furthered the public interest identified by Mr Waalkens. She also drew attention to the introductory words to s 2 to the effect that “medical practitioner” means a registered medical practitioner “unless the context otherwise requires”. She also referred the Court to Dentice v The Valuers Registration Board [1992] 1NZLR 720 where the Chief Justice said at pages 724-725:

“Although, in respect of different professions, the nature of the unprofessional or incompetent conduct which will attract disciplinary charges is variously described, there is a common thread of scope and purpose. Such provisions exist to enforce a high standard of propriety and professional conduct; to ensure that no person unfitted because of his or her conduct should be allowed to practice the profession in question; to protect both the public and the profession itself against persons unfit to practice; and to enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them; see, generally Re a Medical Practitioner [1959] NZLR 784 at pp800, 802, 805 and 814. In New Zealand, such provisions exist in respect of medical practitioners, barristers and solicitors, dentists, architects, pharmacists, real estate agents and a number of other professions and callings, as well as valuers; see the Medical Practitioners Act 1968, Part III; Law Practitioners Act 1982, Part VII; Dental Act 1988, ss 45-68; Architects Act 1963, ss 41-45; Pharmacy Act 1970, Part III and the Real Estate Agents Act 1976, Part VII. The very nature of the professions mentioned indicates the significance of the subject-matter for the public. Obviously and distinctly, it is in the public interest that in respect of such professions and callings, high standards of conduct should be maintained.”

[7] Ms McDonald also referred the Court to a similar statement by the present Chief Justice (as she became) in B v Medical Council of New Zealand (Auckland Registry, HC, 11/96, unreported 8 July 1996).

[8] In my view the remedial nature of legislation of this type is not restricted to protecting the public by preventing unsuitable practitioners from practising. It also sets standards by determining complaints. Not only is this of critical importance, but it also provides a forum for complainants to have their complaints aired and adjudicated upon. It is not just the striking off cases that are of public importance. On the other hand, the relentless prosecution of a practitioner whose name has been removed should not be contemplated unless there is good reason. The present case illustrates that it may be of continuing significance to have past alleged misconduct adjudicated upon.

[9] On the other hand, I agree with Mr Waalkens that it is surprising that when express provision was enacted to keep alive prosecutions where a practitioner had voluntarily applied to be removed from the Register, removal by disciplinary process should not have been included too.

The Tribunal’s decision

[10] The Tribunal addressed the arguments I have outlined and made a full analysis of the sections I have referred to. It expressly stated it was not called upon to decide whether jurisdiction existed to hear a charge brought after a practitioner’s name was removed from the Register. It concluded against all of Mr Waalken’s submissions that as the applicant was a registered medical practitioner when the alleged misconduct occurred, it had jurisdiction to hear and determine the complaint.

Discussion

[11] There can be no doubt that ss 102, 103 and 109 refer only to conduct while a practitioner is a registered medical practitioner. The procedural provisions continue to refer to him or her as such, but in my view the context requires an interpretation that treats the use of the term “medical practitioner” as identifying him or her as such when the events occurred rather than his or her status when proceedings were commenced and prosecuted. Based on my conclusions as to the purpose of the Act with respect to professional discipline, I consider it would be artificial to interpret these provisions as becoming inoperative because for some other reason the practitioner ceased to be registered. In my view the enactment of s 44(3) and 45(4) was to avoid doubt most likely occasioned by an attempted pre-emptive effort by a practitioner to avoid the operation of the Act. In my view, provided the events being investigated occurred while the practitioner was registered, it is competent for a complaint to be made and determined by the Tribunal. I do not see that it matters whether the procedure commences before or after the removal of the practitioner’s name from the Register, but I do not need to go so far.

Conclusion

[12] The Tribunal does have jurisdiction to hear and determine the charge issued by the Complaints Assessment Committee on 30 November 2000. The Committee is entitled to costs which I fix at $1,500 and disbursements if any.