Professional Conduct Committee appointed by the Medical Council of New Zealand v Brown
[2024] NZHC 990
•1 May 2024
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT. SEE PARAGRAPHS [52], [75], [77]-[78] AND [80]. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000445
[2024] NZHC 990
UNDER the Health Practitioners Competence Assurance Act 2003 IN THE MATTER OF
An appeal against a decision of the Health Practitioners Disciplinary Tribunal, Med22/573P
BETWEEN
A PROFESSIONAL CONDUCT
COMMITTEE, appointed by the Medical Council of New Zealand
Appellant/Cross Respondent
AND
DR DOMINIQUE CARLA BROWN of
Wellington, registered medical practitioner Respondent/Cross Appellant
Hearing: 12 February 2024 Counsel:
S C M Waalkens, J L Libbey and S L Ward for Appellant/Cross Respondent
M F McClelland KC and K M Wills for Respondent/Cross Appellant
Judgment:
1 May 2024
Reissued:
16 May 2024 (Public version with redactions)
JUDGMENT OF LA HOOD J
A PROFESSIONAL CONDUCT COMMITTEE v BROWN [2024] NZHC 990 [1 May 2024]
Appeal against penalty, suppression and costs orders of the New Zealand Health Practitioners Disciplinary Tribunal
[1] This is an appeal and cross-appeal against a decision of the New Zealand Health Practitioners Disciplinary Tribunal | Te Rōpū Whakatika Kaimahi Hauora (the Tribunal).
[2] The Professional Conduct Committee (PCC) appeals against the failure of the Tribunal to impose a penalty of suspension on Dr Dominique Brown following a finding of professional misconduct. Dr Brown’s misconduct culminated in her swearing a false affidavit to cover a prolonged period of falsely representing she had passed an examination that was a pre-requisite for entry to a specialist training programme.
[3] Dr Brown cross-appeals against the Tribunal’s decision to decline her application for permanent name suppression and to order her to pay a 40 per cent contribution to costs.
[4] In summary, I allow the appeal and vary the Tribunal’s orders by imposing an additional penalty of three months’ suspension, and dismiss the cross-appeal, for the following reasons:
Penalty
(a)The purposes of disciplinary penalty could not be achieved without imposing a term of suspension because: the seriousness of the misconduct (particularly the swearing of a false affidavit) required a deterrent response; the Tribunal misdirected itself on the need to consider such a response; suspension is required to maintain consistency with similar cases; the primarily protective object of disciplinary penalty means personal mitigating factors carry less weight; and suspension signals to practitioners and gives the public confidence that the profession responds appropriately to serious dishonesty.
Suppression
(b)The Tribunal was correct to conclude that publication will not result in the level of adverse consequences required to displace the fundamental role of open justice. The psychological evidence establishes that the impact of publication on Dr Brown will be no greater than for the average person facing these circumstances. The risk of harm to third parties and potential impact on Dr Brown’s ability to practice is insufficient to justify suppression.
Costs
(c)Costs decisions are highly discretionary and not amenable to granular analysis on appeal. The Tribunal’s approach accorded with principle and was clearly open to it in the circumstances. The fact a more generous approach has been taken in other cases is not a basis to interfere. The Tribunal is correct to limit reductions for admission of charges and full cooperation to approximately 10 per cent in most cases. This provides the necessary incentive to cooperate while recognising other factors, such as the need to ensure that the costs of disciplinary proceedings do not fall disproportionately on the profession.
Background
[5] Dr Brown is a medical practitioner who trained in Australia. On 17 September 2019, she first obtained general registration with the Medical Council of New Zealand
| Te Kaunihera Rata o Aotearoa (the Medical Council).
[6] Dr Brown worked in general practice but intended to train in orthopaedic surgery. In October 2016, she failed to attend the generic surgical science examination (the Exam) in which a pass grade is required to enter the surgical education and training programme for orthopaedic surgery. Subsequently, in February 2020, she sat but failed the Exam.
[7] On 2 April 2020, Dr Brown forged a letter from the Royal Australasian College of Surgeons (the College) dated 16 November 2016 stating that she had passed the Exam in October 2016. On the same day, Dr Brown provided the forged letter to the executive officer of the New Zealand Orthopaedic Association.
[8] On 24 March 2021, Dr Brown applied for the surgical education and training programme despite having not met the entry requirements.
[9] On 25 March 2021, the College contacted Dr Brown to explain that its records did not show Dr Brown receiving a pass grade for the Exam in 2016. On the same day, Dr Brown told the head of training services at the College that she had passed the Exam online and had not registered to sit the Exam at any subsequent time, which was false given her failed attempt in February 2020.
[10] On 31 March 2021, Dr Brown swore an affidavit falsely declaring that: she had passed the Exam in 2016; she was unsure why no record of her attendance at the Exam was held; and that the copy of the forged letter dated 2 April 2020 was a legitimate document.
[11] After an investigation, on 19 December 2022 the PCC charged Dr Brown under s 100(1)(b) of the Health Practitioners Competence Assurance Act 2003, alleging professional misconduct that brought or was likely to bring discredit to the profession at the time that the conduct occurred.
[12]Dr Brown admitted the charge of professional misconduct.
The Tribunal’s decision
[13] On 13 July 2023, the Tribunal found Dr Brown guilty of professional misconduct.1
1 Professional Conduct Committee v Brown HPDT Med22/573P, 13 July 2023.
[14] The Tribunal censured Dr Brown and imposed conditions on her practice. The conditions required her, for a period of two years after commencing practice or following the date of the written order (whichever was the latter), to:
(a)disclose the Tribunal’s decision and its order to all current and future employers; and
(b)receive psychological support at her own expense from a supervisor approved by the Medical Council.
[15] The Tribunal considered a period of suspension was not required to protect the public given the time since the professional misconduct and significant changes Dr Brown made to her personal and professional life since then. The Tribunal imposed a fine of $4,000 and ordered Dr Brown to contribute 40 per cent of the costs incurred by the PCC and the Tribunal, totalling $14,898.
[16] The Tribunal declined to order permanent non-publication of Dr Brown’s name. The Tribunal made orders for non-publication under s 95 of the Health Practitioners Competence Assurance Act in respect of details about other people involved in the broader context of Dr Brown’s circumstances.
PCC appeal against penalty decision
Approach on appeal
[17] In New Zealand, the standard of appellate review depends on the categorisation of the decision under appeal as either the exercise of a discretion or the exercise of evaluative judgement.2 As the Supreme Court noted in Kacem v Bashir, the dividing line between these types of decisions is not always easy to determine.3
[18] If I had to determine the issue, I would not necessarily agree with more recent High Court authority that the Austin, Nichols rather than the May v May approach
2 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 [Kacem]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 [Austin, Nichols].
3 At [32].
applies to penalty appeals from professional disciplinary tribunals.4 The Court in Austin, Nichols held that “on general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case”, taking into account any advantages the original decision maker may have had.5 If the appeal court forms a different view to that of the original decision maker, the decision under appeal is wrong and the appeal must be allowed. The narrower approach, applicable to appeals against the exercise of a discretion, endorsed by the Court of Appeal in May v May is that an appellant must establish that the decision maker erred in principle, failed to take account of relevant matters or took account of irrelevant ones, or was plainly wrong.6
[19] There is no dispute that the Austin, Nichols approach applies to appeals against liability findings from professional disciplinary tribunals. However, there has been considerable debate in the High Court about whether the Austin, Nichols or May v May approach applies to penalty decisions. In Emmerson v Professional Conduct Committee,7 Downs J expressed the view that the May v May approach is preferable because it better aligns with the well-established “error” principle in criminal sentence appeals. It recognises that there can be a range of acceptable outcomes,8 it does not prejudice the rule of law as the Tribunal must still impose penalties in accordance with settled principles,9 and the margin of restraint required recognises a proper element of discretion exercised by the Tribunal.10 However, as the weight of more recent High Court authority was that the Austin, Nichols approach applies, with “considerable reluctance”, Downs J applied that approach because it would be “unhelpful to swim against the tide”.11
[20] Although I tend to agree with Downs J’s analysis in Emmerson, I do not need to determine the issue. There should be little practical difference between the two approaches in the context of this case as the Austin, Nichols approach still requires the Court to be persuaded that the decision was wrong after full consideration of the issues
4 Austin, Nichols, above n 2; May v May (1982) 1 NZFLR 165 (CA).
5 At [5].
6 May v May, above n 4.
7 Emmerson v Professional Conduct Committee [2017] NZHC 2847 [Emmerson].
8 At [93].
9 At [94]–[95].
10 At [95].
11 At [96].
to be determined, the nature and context of the decision, and the nature of the decision maker.
[21] In determining whether the penalty imposed by the Tribunal was “wrong” (as required by Austin, Nichols) in the circumstances of this case, I consider it is appropriate to exercise restraint for a number of reasons:
(a)the Austin, Nichols approach allows the appellate court to determine how much weight it places on the first instance decision;12
(b)this includes whether deference is required due to any advantage the decision maker had in hearing evidence (the Tribunal heard evidence from Dr Brown);13
(c)the Tribunal is a specialist body with members who have subject-matter expertise,14 and are well-placed to assess what is required to set appropriate standards for their profession; and
(d)the PCC, as a responsible prosecuting body, has advanced its case on the basis that the penalty imposed was outside the range of reasonable responses.
Disciplinary penalty purposes and principles
[22] The purpose section of the Health Practitioners Competence Assurance Act provides:
3 Purpose of Act
(1)The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
12 Austin, Nichols, above n 2, at [5].
13 At [5] and [13]. See also A v Professional Conduct Committee [2018] NZHC 1623 at [5]; and Cole v Professional Conduct Committee of the Nursing Council of New Zealand [2017] NZHC 1178 at [30]–[31].
14 Austin, Nichols, above n 2, at [5]. See also A v Professional Conduct Committee, above n 13, at
[5] and Cole v Professional Conduct Committee, above n 13, at [30]–[31].
(2)This Act seeks to attain its principal purpose by providing, among other things,—
(a)for a consistent accountability regime for all health professions; …
(emphasis added)
[23] The decision of the High Court in Roberts v Professional Conduct Committee of the Nursing Council of New Zealand provides a useful summary of the purposes and principles of a disciplinary penalty.15 Collins J held that a penalty imposed on the practitioner should protect the public; facilitate setting professional standards; recognise that penalties may have a punitive function; rehabilitate and reintegrate the practitioner into the profession where possible; be comparable to the penalties imposed on other practitioners who have been penalised for similar behaviour; be based on the Tribunal’s assessment of the behaviour against the range of penalties available, reserving the maximum penalties for the worst offences; involve the least restrictive penalty that can be reasonably imposed in the circumstances; and be fair, reasonable and proportionate in the circumstances.16
[24] I note the more recent statements of principle by a Full Court of the High Court in the context of legal disciplinary proceedings in National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins.17 The Full Court said professional disciplinary penalties are primarily directed at two purposes: public protection (for example, by preventing repetition of the misconduct by the practitioner through suspension or strike-off); and maintaining the reputation of, and public confidence in, the profession by setting appropriate standards.18 The Court noted a previous Full Court had said that to “maintain public confidence in the profession members of the public need to have a general understanding that the legal profession, and the Tribunal members that are set up to govern conduct, will not treat lightly serious breaches of standards”.19
15 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354.
16 At [44]–[51].
17 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] NZHC 1709, [2022] 3 NZLR 452.
18 At [45]–[46].
19 At [46] citing Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850, [2011] NZAR 639 (HC) at [34].
[25]The Court then noted the following principles from previous cases: 20
[47] In Hart v Auckland Standards Committee 1 of the New Zealand Law Society, the Full Court accepted that the nature and gravity of the charges will generally be important and will likely inform the decision to a significant degree because they may point to the fitness of the practitioner to remain in practice. In some cases they may be determinative. In cases involving lesser forms of misconduct, the manner in which the practitioner responds to the charges may also be a significant factor as may previous disciplinary history.
[48] In Ellis v Auckland Standards Committee 5, the Court referred to the above decisions noting that the penalty was to be the “least restrictive” and that the following were relevant considerations:
(a)the nature and quality of the misconduct established;
(b)previous disciplinary history;
(c)any evidence of remorse or insight;
(d)the need for deterrence; and
(e ) any aggravating or mitigating features.
[26] In increasing the period of suspension on appeal in Gardner-Hopkins (due to the Tribunal wrongly taking into account the inevitable consequences of the misconduct as mitigating features), the Court held:21
The object of the disciplinary process is primarily protective. The personal considerations that might lead to a reduced sentence in a criminal context have less impact in a disciplinary setting.
[27] The High Court provided a helpful summary of the principles relating to suspension in Shehata v Director of Proceedings.22 Grice J observed that suspension protects the public and deters other practitioners by identifying and reflecting the misconduct as serious. This reflects the Tribunal’s role in setting professional standards, and allows the practitioner a chance to reflect, which can be rehabilitative.
[28] The principles that emerge from these cases are aimed at achieving the fundamental purposes of public protection and maintenance of professional standards,
20 At [45]–[50] and [106].
21 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins, above n 17, at [64] (footnote omitted).
22 Shehata v Director of Proceedings [2019] NZHC 615 at [75].
which in turn protects the reputation of, and ensures public confidence in, the profession.
Summary of the parties’ cases
[29] The PCC submits that the seriousness of Dr Brown’s misconduct means the penalty imposed was outside the range of reasonable responses open to the Tribunal because a period of suspension was the least restrictive outcome available. This is due to:
(a)The extent and nature of the misconduct including the five occasions of dishonesty, the period over which the dishonesty occurred and the swearing of a false affidavit.
(b)The need for deterrence, denunciation, and accountability in respect of such serious misconduct.
(c)The penalty imposed being inconsistent with other cases involving fraud or forgery that have resulted in suspension or cancellation.
[30] Dr Brown’s position is that while dishonesty of this nature would, “all other things being equal”,23 result in a period of suspension, there were powerful mitigating circumstances in this case that meant suspension was not required.
Assessment of arguments and decision
Analogous cases
[31] I accept both parties’ submissions that dishonesty involving fraudulent and forged use of documents would normally result in cancellation or suspension and that the three most analogous cases are Re McCaig, Re Jayaprakash and Professional Conduct Committee v Dr E.24
23 This is the phrase used by Mr McClelland KC, counsel for Dr Brown.
24 Re McCaig HPDT 704/Med14/299P, 19 June 2015; Re Jayaprakash HPDT 327/Med10/153P, 8 September 2010; and Professional Conduct Committee v Dr E HPDT 1074/Med/19/451P, 31 March 2020.
Re Jayaprakash
[32] In 2005 Dr Jayaprakash falsely claimed in his curriculum vitae that he had completed examinations for Membership of the Royal College of Physicians and Fellowship of the Royal College of Anaesthetists in the United Kingdom and in 2008 provided it in support of a job application which was successful. In June 2009 he falsely stated to a supervisor that he had completed part one of the Fellow of the Australian and New Zealand College of Anaesthetists (ANZCA) examination and provided a forged letter purporting to confirm his successful completion of the Primary Fellowship Examination of ANZCA. Dr Jayaprakash was suspended for six months, fined $5,000 and ordered to pay costs.
[33] About this type of fraudulent conduct and the appropriate disciplinary response, the Tribunal in Re Jayaprakash said that lying about having passed an examination and then attempting to prove that false statement with a forged letter is repugnant to professional propriety.25 A practitioner who misleads his or her employers and the Medical Council about his or her qualifications threatens public safety. Although each case must be decided on its own facts, the most appropriate and frequent penalty for dishonesty of this nature is suspending the practitioner or cancelling their registration. These penalties reflect that the New Zealand public has a right to expect that doctors are honest and do not falsify their qualifications.
Re McCaig
[34] Dr McCaig falsified documents provided to the Medical Council for the purpose of gaining general registration including typing and signing a letter in the name of another doctor and forging the doctor’s signature on an “End of Run Assessment” form. Both were submitted in support of her application for general registration. The PCC inquired into the matter and Dr McCaig admitted her misconduct. The misconduct occurred over a period of approximately six months, with the Tribunal accepting that Dr McCaig “did recognise quickly she had
25 Re Jayaprakash, above n 24, at [19], [48], [66] and [70] (emphasis added).
misconducted herself and sought to remedy this.”26 In assessing the appropriate penalty, the Tribunal said:27
The profession does need a deterrence decision as a clear message to it from the Tribunal that misconduct of this kind will be treated seriously by the Tribunal and suspension from practice can be expected to follow.
[35] The Tribunal imposed a suspension of four months. It gave three months’ credit for the nine months Dr McCaig was out of work as a doctor, leaving a one month suspension. It noted:28
A four month suspension would have been on the lower end of the scale and a fine of $2,000.00 in addition to the net suspension ordered is proportionate to the offending. The Tribunal is of the view that for maintaining standards this fine should be imposed.
[36] The period of suspension was imposed even though the Tribunal acknowledged there were no matters of professional competence arising in respect of the charge. In addition to the suspension and fine, the Tribunal imposed censure, conditions on Dr McCaig’s practice for three years and costs. It declined permanent name suppression.
[37] Dr McCaig appealed her suspension on the basis that the public was not at risk of harm, her competence was not in question and the behaviour was out of character (among other grounds). Palmer J held:
[47] What she did, if it had succeeded, would have exposed the public to a medical practitioner who had not then satisfied the relevant qualifying requirements. Those requirements are intended to assure the public of the standard of medical practice. The principles of protecting the public by way of deterrence, and setting professional standards of propriety and professional conduct, are particularly relevant, ameliorated by the principle of rehabilitation. I do not consider that suspension for four months for this offending combined with a fine of $2,000 is out of line with similar cases that have been brought to my attention.
[38] While noting that the period of suspension was consistent with other cases, Palmer J reduced the suspension on the basis that Dr McCaig had already spent nine months out of practice and the crediting of only three months was arbitrary, and
26 Re McCaig, above n 24, at [66].
27 At [67].
28 At [77].
contrary to the principles of rehabilitation and the imposition of the least restrictive penalty.29 Therefore Dr McCaig’s period of suspension should be treated as already served.
Professional Conduct Committee v Dr E
[39] Dr E falsified a letter in August/September 2017 from the University of Otago to say she had completed all four papers required for a Post-Graduate Diploma in Surgical Anatomy, when in fact she had only completed three papers. She provided the letter, and a curriculum vitae, which incorrectly stated that she had a Post-Graduate Diploma in Surgical Anatomy, to the General Medical Council of the United Kingdom for temporary registration. In February 2018 the discrepancy in the documents was discovered and Dr E was asked to comment, at which time she admitted the misconduct. Dr E’s registration in the United Kingdom was suspended for nine months. The Tribunal noted that Dr E’s dishonesty about the post-graduate diploma did not pose a risk to the public as her registration was not dependent on whether she had the diploma.30 Taking into account the United Kingdom suspension over a total period of nine months, the Tribunal imposed a suspension of one month:
[84] The Tribunal is satisfied that suspension is an appropriate penalty in this case together with a censure to mark the strong disapproval by the Tribunal of the dishonest conduct. The Tribunal considers that the period of suspension should be short to take into account that although Dr E has been able to continue to practise in New Zealand, the very fact of the suspension by the GMC in the UK (over a total period of nine months) has had a punitive effect on her medical career. Following contact by the GMC in February 2018 Dr E did not seek work in the UK over a three-month period. There is no question as to her competence. Her conduct, while dishonest, did not prejudice public health or safety.
Analysis of these cases
[40] I agree with the statements of principle in these cases that emphasise the importance of imposing a deterrent penalty to meet the purposes of public protection and maintenance of standards. Given each of the cases resulted in a term of suspension, Mr McClelland KC’s concession that a suspension would normally be imposed for Dr Brown’s misconduct, “all things being equal”, was well made.
29 At [49].
30 At [83].
[41] In my view, Dr Brown’s misconduct is at a similar level to Re Jayaprakash, although I acknowledge Mr McClelland’s submission that there was greater risk to public safety in that case given the doctor used the false documents to obtain employment as an anaesthetist when he was not qualified to do so (whereas Dr Brown did not obtain employment in orthopaedic surgery). The effects of the misconduct were therefore greater in Re Jayaprakash, but balanced against that is the additional feature of Dr Brown swearing a false affidavit to perpetuate her dishonesty.
[42] I consider it was particularly serious to swear a patently false affidavit to cover a prolonged period of false representations about achieving a pass result for an examination that was a pre-requisite to entry to a specialist training programme. Although no police complaint was made, the swearing of a false affidavit is clearly criminal conduct in addition to being serious professional misconduct.31
[43] I consider the misconduct in this case to be more serious than McCaig, given the additional element of swearing a false affidavit. In McCaig a suspension of four months was required to meet the purposes of deterrence and accountability. Although in both cases the doctors did not succeed in achieving their aims, if they had succeeded, they would have exposed the public to a doctor who had not satisfied the requirements intended to assure the public they were qualified and safe to practice.
[44] I do not accept the submission that Dr Brown’s attempts were less serious because it was for entry into a training programme rather than finalisation of training requirements. In both cases, the doctors falsely represented they had achieved qualifications important to ensuring they were safe to practice. The argument seems to be that the gap in Dr Brown’s knowledge would be repaired through completion of the training she was not qualified to undertake. However, it is purely speculative to guess how the gaps in Dr Brown’s knowledge would manifest as her career progressed. In any event, similar faulty logic could be applied to Dr McCaig’s situation.32
31 Crimes Act 1961, s 110.
32 For example, speculation that because she was near the very end of her training any gaps in her knowledge would be minimal and repaired with further experience.
[45] I also accept that the combination of mitigating features in this case are greater than in Dr McCaig’s (I address these further below). However, in Dr McCaig’s case there were still notable personal mitigating factors, including the lack of any ongoing risk, her otherwise good character and significant financial pressure to support herself and her son after her husband left her and returned to Fiji. This required her to sell her possessions, live with a family member in Auckland and obtain night shift work.33
[46] Dr Brown’s misconduct was also more serious than in Dr E. In addition to the distinguishing feature of the false affidavit, in Dr E the dishonesty related to a qualification that was not a pre-requisite to practising in a specialist area (or at all). Dr Brown’s personal circumstances have some similarities with Dr E’s. Both undertook rehabilitative steps prior to the Tribunal hearing, both had features of their personal and professional lives causing stress that led to the misconduct (Dr E was seeking registration to support her family whilst relocating to the United Kingdom to care for an ill parent and was suffering from “burn out”), and both were at similar stages of their careers (holding general registration and undertaking vocational training).
[47] In each of the comparator cases there was admitted misconduct and other mitigating factors that impacted on the final penalty imposed. As a matter of logic, had those mitigating factors not existed the period of suspension would have been greater. Moreover, in Dr E’s case the suspension was reduced to one month because she had already been suspended for nine months in the United Kingdom.
Penalty methodology
[48] It is important to ensuring consistency between cases that disciplinary penalties are structured in a way that allows meaningful comparison. I consider this is assisted by setting a starting point by reference to the seriousness of the misconduct itself, followed by an assessment of personal aggravating and mitigating features to arrive at
33 Re McCaig, above n 24, at [26].
an appropriate final penalty. The structure of such an approach best serves the statutory purpose of maintaining a consistent accountability regime.34
[49] This was the approach of the Full Court in Gardner-Hopkins, where the Court said the “starting point” for the misconduct was strike-off,35 but the rehabilitative steps the practitioner had taken since the misconduct occurred meant the appropriate outcome was the maximum period of suspension of three years.36
[50] This is, in effect, the approach Mr McClelland urges me to adopt. He acknowledges the starting point for misconduct like Dr Brown’s is suspension, but submits that there are powerful mitigating factors that meant suspension was not required.
[51] Adopting this approach, and having regard to the above cases, I consider that the seriousness of this misconduct required a starting point of at least six months’ suspension.
Was it open to the Tribunal not to impose a suspension?
[52] The question is whether the combination of powerful mitigating circumstances in Dr Brown’s case are sufficient to avoid suspension. In this regard, Dr Brown relies on the following mitigating factors: being subjected to serious misconduct by a [colleague] (bullying and sexual harassment); the effects of a deteriorating relationship with her former partner [redacted]; an unprovoked assault in her home; the extensive rehabilitative efforts she has undertaken, including numerous sessions with a psychologist addressing the underlying issues that caused the misconduct; and the fact she was about to give birth to her first child at the time of the Tribunal hearing.
34 It is also consistent with long-standing criminal sentencing practice: Matthew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAC2]; and R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [8].
35 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins, above n 17, at [101].
36 At [105] and [109].
[53] In determining the appropriate penalty against this background, the Tribunal’s reasoning included:37
[90] Therefore, although not the primary objective, punishment does have a part to play in the discipline of health practitioners under the Act. Indeed, if deterrence is a factor, then it is implicit that the nature or type of penalty is the means by which deterrence is achieved. That would suggest that punishment of one practitioner aims to deter others. There is no suggestion in any of the legal authorities that punishment is the primary purpose of disciplinary proceedings, but there may be situations where the seriousness of the conduct is such that punishment becomes a more relevant consideration.
[91] The present case does not fall into that category. The Tribunal accepts that the practitioner feels the shame of her actions acutely and recognises that her ongoing counselling probably includes an aspect of atonement. The Tribunal has endeavoured to impose a penalty that supports that process and sees no reason to consider whether punishment is required.
(emphasis added)
[54] The Tribunal was correct that the purposes of disciplinary penalty are not aimed at bare retributive “punishment”. The Tribunal quoted the dictionary definition of “penalty” as including “a punishment imposed for breaking a law, rule, or contract”.38 As this indicates (and as was stated in Roberts),39 imposing a penalty that meets disciplinary purposes may seem like “punishment” as the term is commonly understood.
[55] As noted above, it is well-established that deterrence and accountability are important principles in achieving the purposes of penalty. The Tribunal itself noted that deterrence is a component of meeting the established purposes of penalty,40 and recognised the importance of consistent accountability.41
[56] It appears to me that the Tribunal bypassed consideration of the need for deterrence and accountability by stating that it “sees no reason to consider whether punishment is required.”42 The use of the word “punishment” was unhelpful given it
37 Professional Conduct Committee v Brown, above n 1.
38 At [86].
39 Roberts v Professional Conduct Committee, above n 15, at [46].
40 Professional Conduct Committee v Brown, above n 1, at [90].
41 At [84].
42 At [91].
is not a purpose of penalty in its own right.43 It appears the Tribunal was using the term “punishment” as shorthand for a seemingly punitive penalty that addresses the need for deterrence and accountability. It was not open to the Tribunal to omit consideration of these important principles. It must consider them in every case and assess the weight to be placed on them.
[57] I consider it was not open to the Tribunal to decide that the purposes of penalty could be met without a suspension (despite the personal mitigating factors present). A penalty short of suspension was not within the range of reasonably available outcomes. I reach this conclusion for five main reasons:
(a)Lying under oath by swearing a false affidavit was a particularly serious feature of the misconduct, which reinforced the need for a deterrent response.
(b)The Tribunal misdirected itself by not properly considering the need for deterrence and accountability.
(c)The penalty is inconsistent with analogous cases involving use of fraudulent or forged documents, including the statements of principle in those cases about the need for a deterrent response.
(d)As the object of the disciplinary process is primarily protective, personal mitigating features have less impact.44
(e)A period of suspension signals to other practitioners tempted to behave in this way that a significant sanction will follow, and gives the public confidence that the profession responds appropriately to serious dishonesty.45
43 It is notable that the word “punishment” is not to be found in the statutory purposes and principles of criminal sentencing, whereas deterrence, accountability, consistency and denunciation are longstanding purposes of criminal sentencing: see Sentencing Act 2002, ss 7 and 8.
44 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins, above n 17, at [64].
45 At [106].
[58] I have reached this conclusion after allowing for the fact that the Tribunal includes members who are well-placed to set standards for their profession and the advantage they had in seeing Dr Brown give evidence. However, the Tribunal made an error of principle by concluding there was no need to consider a deterrent response, and any advantage in hearing evidence from Dr Brown was limited by the fact her credibility was not in issue.
[59] I have considerable sympathy for Dr Brown given the mitigating features present. However, given the protective object of disciplinary penalty, in this case those mitigating factors should be recognised through a reduction in the period of suspension rather than avoidance of suspension altogether. I therefore consider a reduction from a starting point of six months’ suspension to a penalty of three months’ suspension was the least restrictive outcome available.
[60] The PCC accepts that any suspension should be imposed retrospectively because if it had been ordered at the time of the Tribunal’s decision it would have taken effect when Dr Brown was on parental leave. Given the lack of ongoing risk to the public, it seems appropriate that the suspension is imposed retrospectively from the date of the Tribunal’s orders. I therefore adopt the PCC’s approach.
[61] Accordingly, I allow the appeal and vary the Tribunal’s orders by imposing, in addition to the other orders made, a period of three months’ suspension, to take effect from 13 July 2023.
Cross-appeal: name suppression (non-publication)
Approach to appeal and test for suppression
[62] The Tribunal’s power to order non-publication is governed by s 95(2) of the Health Practitioners Competence Assurance Act. Section 95 relevantly provides:
95 Hearings to be public unless Tribunal orders otherwise
(1)Every hearing of the Tribunal must be held in public unless the Tribunal orders otherwise under this section or unless section 97 applies.
(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:
…
(d)an order prohibiting the publication of the name, or any particulars of the affairs, of any person.
[63] I consider that the weight of appellate authority likely requires application of the May v May approach to name suppression appeals in this context.46 Ultimately, however, I do not consider I need to resolve the issue. As I indicated to the parties at the hearing, out of an abundance of caution and in fairness to Dr Brown, I intend to apply the Austin, Nichols approach, but in doing so, I should not be taken as accepting that it is applicable. In the end, the approach I take makes no difference to the outcome of the appeal because I do not consider the Tribunal’s decision was either “wrong” or “plainly wrong”.
[64] However, I do not accept Dr Brown’s submission that the test for suppression in professional disciplinary proceedings is a lower threshold than the normal civil standard articulated in Erceg v Erceg.47 The public protection object of disciplinary proceedings is usually not present in general civil proceedings. In Y v Attorney- General, the Court of Appeal noted the different context of disciplinary proceedings:48
Given the almost limitless variety of civil cases and the fact that every case is different, the balancing exercise must necessarily be case dependent. Sometimes the legitimate public interest in knowing the names of those involved in the case (either as parties or as witnesses or both), or in knowing the detail of the case, will be high. Hart v Standards Committee (No 1) of the New Zealand Law Society was such a case. As this Court observed:
The public interest and open justice principles generally favour the publication of the names of practitioners facing disciplinary charges so that existing and prospective clients of the practitioner may make informed
46 See Rowley v Commissioner of Inland Revenue [2011] NZSC 76, (2011) 25 NZTC 25,438; Y v Attorney-General [2016] NZCA 474, [2016] NZFLR 911, [2016] NZAR 1512 at [24]; Hart v The Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676 at [16]; Hart v The Standards Committee (No 1) of the New Zealand Law Society [2012] NZSC 4 at [3]; FMV v TZB [2019] NZCA 282, [2019] NZAR 1385 at [7]-[8]; Parker v R [2019] NZCA 350 at [2]; Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [47]; J v The New Zealand Institute of Chartered Accountants Appeals Council [2020] NZHC 1566 at [71].
47 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.
48 Y v Attorney-General, above n 46, at [32], citing Hart v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676 at [18].
choices about who is to represent them. That principle is well established in the disciplinary context and has been recently confirmed in Rowley.
Consequently, a professional person facing a disciplinary charge is likely to find it difficult to advance anything that displaces the presumption in favour of disclosure.
(emphasis added and footnotes omitted)
[65] The Supreme Court in Erceg v Erceg held that a party seeking suppression must show to a high standard that the interests of justice require a departure from open justice, such as specific adverse consequences sufficient to justify an exception to that fundamental principle.49
[66] Edwards J in Beer v Professional Conduct Committee held that public protection, maintenance of standards, transparency and accountability, and ensuring suspicion does not unfairly fall on others, are the public interests at stake in name suppression applications in the disciplinary context.50 Edwards J said:51
Transparency and accountability walk hand in hand. Those found guilty of misconduct must be held to account for their actions and part of that process includes being identified as the person who conducted themselves in that way.
[67] I consider the public interests at stake also include protecting the reputation of, and ensuring public confidence in, the profession,52 which aligns with Edwards J’s view that transparency and accountability serves more than just a public protection purpose because it “protects the integrity of the disciplinary process”.53
[68] I do not accept that the wording of s 95, particularly the use of the word “desirable”, has the effect of setting a lower threshold for suppression than in general civil jurisdiction. In J v The New Zealand Institute of Chartered Accountants Appeals Council,54 Gwyn J held that the use of the word “appropriate” in the relevant suppression provision did not add content to the tests usually applied in the civil
49 Erceg v Erceg, above n 47, at [13] and [21].
50 Beer v Professional Conduct Committee [2020] NZHC 2828 at [38] and [43].
51 At [42].
52 National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins, above n 17, at [45]–[49] and [106].
53 Beer v A Professional Conduct Committee, above n 50, at [40].
54 J v The New Zealand Institute of Chartered Accountants Appeals Council, above n 46, at [85]– [86].
proceedings or set a threshold lower than that applied in the civil jurisdiction. I consider that conclusion applies with equal force to the word “desirable”.
[69] I therefore do not accept the submission that the test for suppression in professional disciplinary proceedings is a lower threshold than the normal civil standard articulated in Erceg v Erceg. I respectfully disagree with High Court decisions that have held otherwise.55
The Tribunal’s decision on suppression
[70] In determining suppression, the Tribunal weighed the public interest in knowing the names of practitioners who have faced disciplinary consequences and public safety against the private interests of Dr Brown.56 The Tribunal said that possible impact on rehabilitation is not a reason for suppression in the absence of evidence about how rehabilitation will be prevented by publication (otherwise most practitioners who do not have their registration cancelled would be entitled to name suppression).57
[71] The Tribunal accepted that publication of Dr Brown’s name would cause embarrassment and distress but noted that suppression would become automatic if this were the only ground relied on. The Tribunal noted the absence of evidence regarding any risk posed to Dr Brown’s mental wellbeing due to publication.58
[72] The Tribunal concluded that publishing Dr Brown’s name would not impede her career or cause patients not to seek treatment.59 Therefore, the Tribunal concluded it was desirable to publish her name.60
55 For example, Johns v Director of Proceedings [2017] NZHC 2843 at [166]; and
Beer v A Professional Conduct Committee, above n 50, at [23].
Professional Conduct Committee v Brown, above n 1, at [115].
57 At [120].
58 At [121].
59 At [122]–[124].
60 At [125].
Assessment of arguments and decision
The PCC’s position in the Tribunal
[73] It is common ground that the Tribunal wrongly stated that the PCC opposed suppression when it in fact took a neutral stance.61 However, the Tribunal was required to reach its own view on the merits of suppression irrespective of the PCC’s position.62 The Tribunal’s error about the PCC’s position is also irrelevant to my assessment on appeal of whether the test for suppression is met.
Impact on acceptance into training programme
[74] Dr Brown filed further evidence on appeal of her communications with the Royal New Zealand College of General Practitioners (the College), which she initially suggested meant publication of her name could affect her acceptance into the College’s training programme. Following the filing of an affidavit by the College’s national admissions advisor, it became clear that the naming of Dr Brown and any associated media publicity will not have an impact on whether she is accepted to the general practitioner training programme. Clearly, the evidence does not support suppression on this ground.
Psychological impact
[75] Dr Brown also filed further evidence in the form of a letter from her psychologist dated 18 January 2024. The letter includes the statement that there is:
… no evidence to suggest that publication of Dr Brown’s name would seriously impact her mental state more than the average person facing such circumstances. When last seen …, [redacted]. From a psychological perspective, this appears a positive prognostic sign in terms of therapeutic progress.
[76] Self-evidently, this does not support the proposition that publication of Dr Brown’s name will cause her sufficient adverse consequences to displace the fundamental principle of open justice. As the Supreme Court has recently confirmed in the context of a criminal name suppression, the impact contended for must be
61 At [103].
62 Russell v Police [2020] NZCA 103.
compared to the usual consequences of publication.63 The impact on Dr Brown will be no more than the impact on the average person in her position.
Identification of other parties
[77] I do not accept the submission that publication of Dr Brown’s name presents an unacceptable risk of identification of her former partner, the person who assaulted her in her home, her former [colleague] and [redacted].
[78] It was common ground that suppression of Dr Brown’s relationship with the person who assaulted her will address that issue. In relation to [redacted], I do not consider [redacted] [it] is a material matter and all reference to it can be suppressed and redacted from the publicly available decisions of the Tribunal and this Court.
[79] In respect of her former partner, he is not named in the judgment and will not therefore be identified to people unaware of Dr Brown’s connection to him.64 For those who will be able to identify him, he is afforded further protection by the details of the allegations being suppressed.65 While this may not afford him complete protection, it is clear that the Tribunal’s decision is based on Dr Brown’s account and that he has not been a party to the proceedings, nor had an opportunity to respond. Possible adverse consequences for him are speculative and in any event an unavoidable consequence of the public interest in publication and the fundamental principle of open justice.
[80] Similar considerations apply to Dr Brown’s former [colleague]. He will also be afforded protection by not being named and by suppression of [his position]. Any speculative adverse consequences due to identification by people who may be able to “join the dots” is insufficient to justify suppression of Dr Brown’s name.66
63 M (SC13/2023) v R [2024] NZSC 29 at [70].
64 Although publication of Dr Brown’s name will identify her ex-partner to those that know them, it will not automatically lead to identification to the general public: Beer v Professional Conduct Committee, above n 50, at [33]–[34]
65 Professional Conduct Committee v Brown, above n 1, at [129], although the references to material to be suppressed should have been to [59] and [60] not [60] and [61].
66 See the Court of Appeal’s recent consideration of “jigsaw” identification in Newsroom NZ Ltd v Solicitor-General [2024] NZCA 101 at [117] and [125]–[136].
[81] I consider the submission that there may be repercussions for Dr Brown from her former partner or former colleague upon publication of the judgment to be speculative. Both live overseas and there is no evidence that they pose a current risk to Dr Brown.
[82] I do not accept Dr Brown’s submission that redacting the decision to comply with suppression will be so unfair to Dr Brown that suppression must follow. This was advanced on the basis that the published judgment will not reflect the full extent of the mitigating circumstances present. While redactions are never ideal, the decision will still reflect that significant personal mitigating factors were present. I also consider that if Dr Brown provided the suppressed details to someone with a genuine interest in receiving them, such as a potential employer, that would not be a breach of suppression given the Supreme Court’s decision in ASG v Hayne.67
[83] I also do not accept that the impact on Dr Brown’s future practice due to current or potential patients’ concerns about her misconduct are sufficient to justify suppression. There is no suggestion that her clinical practice has put patients at risk. In any event, it is entirely appropriate that patients are given an opportunity to decide whether they consider her misconduct impacts upon their willingness to use her services.68 I consider it unlikely that reasonable patients would react in a way that will seriously undermine Dr Brown’s ability to practice medicine.
Conclusion on suppression
[84] Accordingly, I am not persuaded that the Tribunal was wrong to decline name suppression. I agree with the Tribunal’s assessment that publication will not result in the level of adverse consequences required to displace the fundamental role of open justice.
[85]I therefore dismiss the cross-appeal in respect of suppression.
67 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777.
68 Y v Attorney-General, above n 46; and Hart v Standards Committee (No 1) of the New Zealand Law Society, above n 46.
Cross-appeal: costs
[86] Costs decisions are highly discretionary. The May v May appellate approach applies to costs appeals in civil proceedings. The Court of Appeal has explained:69
[1] Questions of costs are ultimately a matter of discretion. The exercise often requires assessment of a wide range of factors. The overall objective is to achieve an outcome that best meets the interests of justice in the given case in accordance with any applicable costs rules and consistent with established principles. The trial judge is uniquely placed to make this assessment. It is well-settled that an appellate court should not interfere with a costs award unless satisfied that the judge acted on a wrong principle, failed to take account of some relevant matter, factored in the irrelevant or was plainly wrong. This is why appeals against costs awards seldom succeed.
[87] I consider these statements apply with equal force to appeals against costs decisions in disciplinary proceedings having regard to the principles applicable to determining the appropriate appellate approach. The Tribunal is uniquely placed to make discretionary costs decisions that meet the interests of justice in a particular case. It is a wide power with no statutory guidance and in relation to which a wide range of factors may be taken into account.70
[88] The essential submission for Dr Brown is that the Tribunal’s decision was in error because a costs contribution of 40 per cent is inconsistent with other similar cases where there has been an admission of liability, and a hearing that has proceeded on an agreed summary of facts. In particular, Dr Brown relies on the 20 per cent costs order in Re Jayaprakash,71 the 25 per cent costs order in Re McCaig,72 the 30 per cent costs order in PCC v Dr E,73 and the 30 per cent costs order in Re Winefield.74
[89] Dr Brown also provided a table of the 10 most recent cases in the Tribunal where 40 per cent costs were ordered. Dr Brown submits that the circumstances of
69 Kinney v Pardington [2021] NZCA 174 (footnotes omitted); and see also Bublitz v R [2019] NZCA 379 at [24]–[25] where, in respect of a criminal costs appeal, the Court of Appeal said costs are “a matter of discretionary impression for the Judge”.
70 I therefore agree with Gilbert J’s application of the May v May approach in Simes v Canterbury- Westland Standards Committee 2 of the New Zealand Law Society [2013] NZHC 1501 at [16] and respectfully disagree with Edwards J’s conclusion that the Austin, Nichols approach applies in Beer v Professional Conduct Committee, above n 51, at [21].
71 Re Jayaprakash, above n 24, at [70].
72 Re McCaig, above n 24, at [80]–[84].
73 Professional Conduct Committee v Dr E, above n 24, at [88]–[93].
74 Re Winefield HPDT 83/Phar06/30P, 5 February 2007 at [22].
those cases were very different from Dr Brown’s, but many of those cases proceeded on the basis of an agreed summary of facts and a full or partial admission of the charge.75 Although, I do note that there were two cases where the practitioner did not engage in the process at all and a 40 per cent costs order was still made.
[90] It appears from the 10 comparator cases in the table, and the approach in Dr Brown’s case, the Tribunal has recently taken a more structured approach to costs. This approach is reflected in the Tribunal’s Costs Practice Note issued on 24 March 2023. The Practice Note relevantly provides:76
The purpose of this practice note is to give notice of the procedure it intends to follow in making orders as to costs and expenses, under section 101(1)(f) of the Health Practitioners Competence Assurance Act 2003.
1.The Tribunal wishes to provide the parties with an improved level of predictability regarding the award of costs.
2.A trial of this Practice Note will run for one year and will apply to all cases where the charge is filed after 1 April 2023.
Jurisdiction
3.Under the Act, Schedule 1, cl 5, the Tribunal may regulate its procedure in any manner it thinks fit, subject to the requirement to publish any rules of procedure it makes and observing the rules of natural justice at its hearings.
4.Where the Tribunal has upheld a charge against a health practitioner under section 100, section 101 gives the Tribunal the power to order that practitioner to pay part or all costs and expenses of:77
a)Any investigation
b)Any inquiry
75 Professional Conduct Committee of the Physiotherapy Board v Appel HPDT 1141/Phys20/483P, 11 March 2021; Professional Conduct Committee v Cochrane HPDT 1233/Chiro21/523P, 6 May 2022; Professional Conduct Committee v A HPDT 1243/Med21/528P, 17 June 2022; Professional Conduct Committee v M HPDT 1212/Med20/482P, 16 December 2021; Professional Conduct Committee v S HPDT 1332/Med22/560P, 8 September 2023; Professional Conduct Committee v Edwards HPDT 1211/Pod20/484P, 15 December 2021; Professional Conduct Committee v Hylla HPDT 1096/PHYS20/470P, 26 June 2020; Professional Conduct Committee v Sharma HPDT 882/Nur16/362P, 15 March 2017; Professional Conduct Committee v Tepou HPDT 1331/Nur22/556P, 10 June 2021; and Professional Conduct Committee v Thomas HPDT 1044/Nur19/449P, 18 September 2019.
76 The footnotes to the Practice Note have been edited to correct minor errors.
77 For a fulsome discussion of the matters that may be included in the costs and expenses payable by a practitioner and approach to quantification, see Professional Conduct Committee v Ben-Dom HPDT 1078/Med19/445P, 17 April 2020.
c)The prosecution of the charge
d)The hearing by the Tribunal.
5.There is no jurisdiction to order costs against the Professional Conduct Committee or the Director of Proceedings.
Principles
6.The costs principles found in the leading decisions continue to guide the Tribunal. The general legal principles which apply to costs against professional people facing disciplinary charges include:
a)The fact that professional groups ought not to be expected to fund all the costs of the disciplinary regime; and members of the profession who come before disciplinary bodies must be expected to make a proper contribution towards the costs of the inquiry and hearing;78
b)Costs are not in the nature of a penalty or to punish;79
c)The practitioner’s means should be taken into account;80
d)A practitioner has a right to defend himself or herself;81
e)The level of costs should not deter other practitioners from defending a charge;
f)The starting point for a reasonable order of costs is 50% of reasonable costs, and that in some circumstances downwards or upwards adjustment will be appropriate.82
7.The 50% starting point may be increased or decreased taking into account various factors, including:
a)the way in which the parties have conducted themselves, including whether any party unnecessarily prolonged the proceedings (including the hearing time) with meritless arguments or irrelevant evidence;
b)whether there were any novel points that merited further argument and determination, even if eventually unsuccessful;
78 G v New Zealand Psychologists Board HC Wellington CIV-2003-485-2175, 5 April 2004; and
Vasan v Medical Council of New Zealand HC Wellington AP 43/91, 18 December 1991.
79 Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 (HC) at [195].
80 Kaye v Auckland District Law Society [1998] 1 NZLR 151 (HC).
81 Vasan v Medical Council of New Zealand, above n 78.
82 Cooray v Preliminary Proceedings Committee HC Wellington AP 23/94, 14 September 1995.
c)the health practitioner has produced satisfactory evidence of their limited financial position or inability to pay any award; and
d)part of the charge was not established or a charge or particulars were withdrawn and costs can be attributed to that charge or particular.
[91] I note that the Chair of the Tribunal who issued this Costs Practice Note also issued a Practice Note as Chair of the Teachers’ Disciplinary Tribunal, which sets out very similar principles along with an additional paragraph that states:83
8.Without limiting the Tribunal’s discretionary decision-making, in most cases where a teacher has admitted a charge and fully co- operated in bringing the matter to an end in an expedient way, the costs contribution has usually been in the region of 40%.
[92] The Tribunal’s articulation of the relevant principles in the Costs Practice Note is helpful and accords with relevant authority.84 The principle that costs are not part of the penalty is important in assessing the appropriate reduction to the 50 per cent starting point. The mitigating features of the case that are relevant to penalty are therefore irrelevant to any reduction in costs. As the principles in paragraph 7 of the Practice Note make clear, uplifts and reductions are justified by reference to matters that have an impact solely upon the level of costs.
[93] However, care also needs to be taken to avoid double accounting because the practitioner’s level of cooperation will already be reflected in the quantum of costs against which the 50 per cent starting point is taken. I agree, therefore, that if a practitioner has admitted a charge and fully cooperated in bringing the matter to an end in an expedient way, the appropriate reduction will be in the region of 10 per cent in most cases. This appears to be the approach that the Tribunal is now taking, having regard to the table of cases provided to me by Dr Brown and its approach in Dr Brown’s case.
83 Practice Note of Teachers Disciplinary Tribunal, Practice Note 1: Costs, 1 April 2022.
84 I note that the principle of a starting point of 50 per cent is not a universally accepted approach in professional disciplinary proceedings in New Zealand. For example, the Lawyers and Conveyancers Disciplinary Tribunal prioritises the principle that professional groups ought not to be expected to fund the costs of disciplinary proceedings by adopting a starting point that a practitioner should pay full costs: see for example National Standards Committee No 1 v Gardner- Hopkins [2022] NZLCDT 2 at [76].
[94] Although I accept that a more generous approach has been taken by the Tribunal in other (mainly earlier) cases, I consider the approach the Tribunal took in this case accords with principle and is correct. It is certainly one that is open to the Tribunal in exercising its discretion. Moreover, the Tribunal’s wide discretion does not invite the type of granular comparison of costs awards urged upon me by Dr Brown. A reduction of 10 per cent to reflect cooperation provides the necessary incentive for practitioners to cooperate while still balancing other factors, such as the need to ensure that the costs of disciplinary proceedings do not fall disproportionately upon the profession.
[95]I therefore dismiss the costs cross-appeal.
Overall result
[96] The PCC’s penalty appeal is allowed. The Tribunal’s orders are varied by imposing, in addition to the other orders made, a period of three months’ suspension, to take effect from 13 July 2023.
[97]Dr Brown’s cross-appeals on non-publication and costs are dismissed.
La Hood J
Solicitors:
RiceSpeir, Auckland for Appellant/Cross Respondent
Wotton + Kearney, Wellington for Respondent/Cross Appellant
16
0