R v Medical Practitioners Disciplinary Tribunal HC Wellington CP No. 183/01

[2001] NZHC 1077

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP No. 183/01

ORDER MADE RESTRICTING PUBLICATION OF ANY PARTICULARS THAT MIGHT IDENTIFY THE PLAINTIFF OR MEMBERS OF HIS FAMILY

ORDER MADE PROHIBITING SEARCHING OF FILE BY ANY PERSON
OTHER THAN COUNSEL INVOLVED IN THE PROCEEDINGS
WITHOUT LEAVE OF THE COURT

UNDER The Judicature Amendment Act 1972

AND

IN THE MATTER of a decision made by the Complaints Assessment Committee of the Medical Council

BETWEEN R Medical Practitioner
Plaintiff

AND THE MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
a body established under the Medical Practitioners Act 1995
First Defendant

AND THE COMPLAINTS ASSESSMENT COMMITTEE
a body established under the Medical Practitioners Act 1995
Second Defendant

Date of Hearing: 1 November 2001

Date of Judgment: 9 November 2001

Counsel: A J Knowsley and K A L Bicknell for Plaintiff
B A Corkill for First Defendant

K G Davenport for Second Defendant

Solicitors:

Rainey Collins Wright & Co, Wellington for Plaintiff

B A Corkill, Wellington for Frist Defendant

Complaints Assessment Committee (on behalf of Medical Council), Wellington for Second Defendant

JUDGMENT OF DURIE J

Introduction

[1] This is an application under the Judicature Amendment Act 1972 for judicial review of the actions of the Medical Practitioners Disciplinary Tribunal and of the Complaints Assessment Committee, both established or provided for under the Medical Practitioners Act 1995. The Medical Practitioners Disciplinary Tribunal, as first defendant, abides the decision of the Court. The primary concern is with the actions of the Complaints Assessment Committee. The applicant, who is the plaintiff in these proceedings, is a medical practitioner who is the subject of a complaint by his former wife. The trouble stems from the fact that further allegations were made after the wife’s complaint was notified to the plaintiff. The plaintiff says he was still not informed when he was invited to respond in writing, and again, when he was questioned at a subsequent meeting. He claims his rights were thus infringed. The Committee contends that the further allegations arose naturally from the complaints and that no harm was done. The plaintiff effectively seeks to strike out the further allegations, as now represented in three out of seven Particulars given in support of a charge of disgraceful conduct.

Background

The Complaint

[2] On 4 March the complainant lodged a written complaint with the Registrar of The Medical Council of New Zealand. That complaint was almost exclusively concerned with the way in which she, and she alone, had been treated by the plaintiff. In that context she complained of two matters. The first was the plaintiff’s alleged role in committing her to a local hospital. The second alleged that for some time the plaintiff had wrongly prescribed psychotropic drugs for her, causing her the physical and mental disablements that gave grounds for her committal. In her lengthy letter of complaint, she alleged various atrocities within the ambit of those matters I have mentioned. In addition, however, she briefly commented, in the first paragraph, that the plaintiff was “addicted to sleeping tablets”.

Outline of the process

[3] Part VIII of the Medical Practitioners Act 1995 provides for such complaints to the Council to be referred to a Complaints Assessment Committee, if, as in this case, the matter is one that the Health and Disability Commissioner elects not to handle. The Committee, after considering the same, has power to frame and lay charges with the Medical Practitioners Disciplinary Tribunal. The Tribunal, in turn, is to determine the charges and if proven, to consider one or more of the penalties prescribed by the Act for the particular charge. In this case the charge is of disgraceful conduct, for which, the plaintiff is liable to be removed from the register. In considering the complaint, the Committee may receive written and oral representations from both the complainant and the practitioner, and both have a right to be heard before a determination is made.

Preparation for consideration of the complaint

[4] Section 90 of the Act obliges the President of the Medical Council to ensure that the practitioner is advised of the “particulars of the complaint”. To that end the Council wrote to the plaintiff with a copy of the complaint. It also advised of the Committee’s process. As required by the Act it further advised of the composition of the Committee, for the purpose of receiving any objections, but that is not in issue in these proceedings.

[5] Likewise, the Council was obliged to inform the complainant of the Committee’s composition. This it did, on 22 June 2000. However, in doing so, the Council represented the complaint as relating to “your concerns concerning [the plaintiff’s] self-prescribing”. Clearly self-prescribing was not the complaint unless “self-prescribing” was seen to include prescribing for one’s wife; or unless it was assumed that the plaintiff’s alleged addiction to sleeping tablets arose from self-prescribing. Since the letter was a letter from the Council to the complainant, it would normally have had no effect on the Committee’s understanding of the complaint, but the correspondence was included in the file constituted for each member of the Committee. That may have led to some belief that “self-prescribing” was part of the agenda.

[6] Alternatively, or in addition, the possibility of self-prescribing may be seen to have arisen from the plaintiff’s reply to the Council, on 14 July 2000. He denied the complaints in respect of the complainant but then commented as follows on his own alleged addiction:

“I deny that I am addicted to any medicine and I am specifically not addicted to sleeping tablets. I admit that I have had prescriptions for sleeping tablets usually before long overseas flights and towards the end of my relationship with the claimant I had to take half a sleeping tablet on most nights because the claimant, having stayed in bed most days, simply would not allow me any sleep. She kept on complaining and would not stop. Ever since our arrival in New Zealand in 1993 I had about four months’ supply of Imovane.”

[7] The Committee of three members, met together in December 2000 and February 2001 to consider the issues. The Committee convenor, Mr Clarke, recalled that the Committee identified three issues at this point. They may be stated succinctly as follows:

(i) The alleged committal of the complainant;

(ii) The alleged prescribing for the complainant; and

(iii) The plaintiff’s alleged addiction to sleeping pills.

[8] The plaintiff has taken no umbrage with that assessment of the issues by the convenor. However, the issues were not so clearly defined in the minds of other members. Mr Gluckman, a member of the Committee, according to his affidavit evidence, may be seen as having identified a single issue as follows:

- The alleged prescribing for the complainant, and as naturally flows from that, the propriety of so doing.

[9] Mrs Melding, another member of the Committee, had another recollection of the issues which was, in brief as follows:

(i) The alleged prescribing of psychotropic drugs for the complainant and the propriety of so doing;

(ii) The alleged self-prescribing of psychotropic drugs and the propriety of so doing;

(iii) The prospect of the complainant being treated against her will.

[10] As I have indicated, the plaintiff considered the issues to be those that I have attributed to the convenor, Mr Clarke. The plaintiff deposed that he went to the meeting prepared to address those three matters. He was not ready to address a complaint of self-prescribing or any other matter.

Complainant’s appearance before the Committee

[11] Section 92(3) of the Act is to the effect that in addition to giving the practitioner and the complainant a reasonable opportunity to make a written explanation or statement, the Committee may, on the application of either or both of them, or of its own motion, give to each a reasonable opportunity to appear before the Committee to make an explanation or statement in relation to the complaint.

[12] Both the plaintiff and the complainant expressed a wish to meet with the Committee. That was arranged and they met separately with the Committee on 22 February 2001, the complainant at 1.00 pm and the plaintiff at 3.00 pm At her interview the complainant put in 14 pages of typed notes dwelling extensively on her relationship with the plaintiff and his alleged prescribing of drugs for her. There was nothing in that to extend the enquiry beyond the three issues that the convenor had mentioned. However, a matter did arise in the course of the oral examination of the complainant. Mr Gluckman, a member of the Committee, recalled as follows in his affidavit:

“During the course of our conversation with [the complainant] she mentioned that her former husband always carried Ritalin with him in his top pocket. I asked her how he got it and she told me that he prescribed it for their daughter, [D]. I believe that [the complainant] may have commented that [D] had ADD (Attention Deficiency Disorder).”

[13] The Committee convenor, Mr Clarke, deposed:

“The Committee asked [the complainant] some more questions concerning the prescription of Ritalin to [D]. [The complainant] said that [the plaintiff] had prescribed Ritalin for [D] for many years, as a matter of course. This was the first time that we had heard of this matter, but we were very concerned and interested to enquire more about this aspect of the complaint. We felt it arose out of the complaint because it related to [the plaintiff’s] prescribing habits in an allegedly inappropriate way for himself and for members of his family. We obviously had to raise this issue with [the plaintiff] and we asked him some questions relating to it at a subsequent meeting at 3.00 pm.”

[14] I take the reference to “members of his family” as intending to relate only to the wife and the named daughter. For a more explicit recollection that the complainant may have indicated that the plaintiff had also prescribed “for himself”, it is necessary to refer to the affidavit of the third Committee member, Mrs Melding. She recalled:

“In the course of our conversation about [the plaintiff’s] allegedly inappropriate prescribing of psychoactive drugs, [the complainant] made the allegation that [the plaintiff] was addicted to Imovane, a sleeping tablet. She said that he took the Imovane at night to make him sleep and during the day he would take Methylphenidate (Ritalin) to wake him up. She said he always had Ritalin in his top pocket. Methylphenidate (Ritalin) is a controlled psychotropic medication and it is an amphetamine used in the treatment of Attention Deficit Hyperactivity Disorder (ADD or ADHD).”

[15] The succeeding paragraphs of Mrs Melding’s affidavit clearly indicate her presumption that this was self-prescribed.

The plaintiff’s appearance before the Committee

[16] The evidence of Mr Clarke confirms that questions on the plaintiff’s prescribing for D were put to the plaintiff when the plaintiff appeared. However, that was expressed generally. Mr Gluckman was more particular. Mr Gluckman recalled the complainant’s conversation on the supply of Ritalin for the daughter, D.

He considered it was extremely unwise to prescribe such a drug, long-term, for a family member, without specialist overview. He deposed:

“I was therefore concerned enough about this comment to ask [the plaintiff] about it when we met with him. The question that I had asked him in front of his counsel was whether his daughter had ADD? He told me that she did have ADD and freely admitted that he had been prescribing Ritalin for her. He told me that [D] had the diagnosis of ADD made by [name of doctor in the country of origin] prior to their immigration to New Zealand in 1993. He told me that he had been prescribing Ritalin for [D] since that time based on [name of doctor] recommendation. He also said that he had been prescribing this drug to her only intermittently as she required it for exams. He said at the meeting that he had last prescribed it some two to three years ago. I understood [D] to be a student at university. Subsequently we asked [the plaintiff] to provide copies or details of his prescription of this drug and he provided us with copies of the scripts . . .”

[17] Mr Clarke added, from his own recollection:

“We also asked [the plaintiff] about the prescription of Imovane and his alleged addiction and he again admitted that he was in the habit of prescribing Imovane for himself when necessary.”

[18] Mrs Melding deposed that all the issues, (whatever they may have been), including that of self-prescribing, were raised with the plaintiff. She stated:

“We then met with [the plaintiff] and asked him about all the matters at issue including this aspect of the alleged inappropriate prescribing [the allegation, as she saw it, that the plaintiff was taking Ritalin to keep him awake during the day]. [The plaintiff] denied that he was taking Methylphenidate (Ritalin) himself. He said that he prescribed it for his daughter, [D], then aged approximately 22 [details of [D] were then given]. He said that [D] had been diagnosed as having ADHD in [name of country of origin] at aged 5 years and that he had been prescribing Methylphenidate (Ritalin) for her without further specialist oversight ever since. [The plaintiff] said that [D] was now only taking Methylphenidate (Ritalin) intermittently as required, around exam time. We were concerned about the prospect of a doctor prescribing a controlled psychotropic drug to a family member without oversight from another practitioner and consequently following the meeting we decided that one of the issues that needed further investigation was this issue of prescription of Methylphenidate (Ritalin). We therefore wrote the letter dated 29 February 2001 to [the plaintiff] asking for further information about his prescribing habits for his daughter. He provided us with copies of the prescription that he had written for her.”

[19] Later in her affidavit, Mrs Melding deposed to a further matter of complaint that the complainant, in her recollection, had passed on:

“In our interview with [the complainant] she said her husband would not have allowed the children or her to be seen by any other doctor. During the course of interview with [the plaintiff] I asked him why he believed it was appropriate for him to treat his children (as he told me that he had for example carried out a tonsillectomy on them in [country of origin]) and he said it was considered culturally appropriate to do so in [country of origin]. I asked him whether he was aware that it was not considered culturally appropriate or good medical practice to do the same in New Zealand, but I do not think he made a response to this.”

[20] There was no other reference in any of the affidavits to the plaintiff’s alleged treatment of the children generally.

[21] The plaintiff’s evidence was that he was at all times prepared to answer to the three issues that the convenor of the Committee had identified but that, at his meeting with the Committee, he was taken aback by questions relating to his prescribing Ritalin for D. He endeavoured to respond as he thought the Committee were asking for matters of background. He also felt it prudent not to cause annoyance to the Committee who after all, were investigating serious complaints concerning his relationship with the complainant. But the plaintiff had no recollection that self-prescribing had been made a subject of the complaint. He deposed:

“The issue of self-prescribing as a complaint was never raised with me. [The complainant] had alleged that I was addicted to sleeping tablets and I answered that point at the [Committee meeting] and no charge has been laid in respect to that.

I was not aware that the [Committee] considered the issue of self-prescribing and I did not address myself to the [Committee] in relation to that being a complaint.

If there had been a complaint about self-prescribing and if I had known about it then I could have addressed the [Committee] on that and I would have called expert evidence on the issue of self-prescribing. I was denied that opportunity and I feel that I have been prejudiced.”

[22] The plaintiff also considered that there was never a complaint of prescribing to the children generally.

Post-meeting developments

[23] Following the separate meetings with the complainant and the plaintiff, the Committee members met together and arranged for some inquiries of their own. Then, on 24 February 2001, the convenor wrote to the plaintiff for clarification of two matters in respect of which he sought a response within 7 days of receipt. The second related to the complainant and is not a matter of concern in these proceedings. The first was as follows:

“Could you please provide more information regarding your stated treatment of your daughter [D] with regard to copies of your diagnosis of her condition and the medications that you prescribed for her. In particular (a) copies of your notes (as her GP) and details of prescriptions (doses, directions for use, frequency of use etc) for Ritalin, (b) copies of your referral notes to specialists (be they medical, psychological etc) for the confirmation of [D’s] condition, (c) copies of referral notes to specialists (educational) for the confirmation of and assistance in managing [D’s] ADD and (d) referrals by you to and from Doctors and or specialists in [country of origin].”

[24] The respondent replied to the request on 22 March, setting out particulars relating to the treatment of D in which he dwelt on the diagnosis and treatment by a doctor and child psychiatrist in the plaintiff’s country of origin. Upon coming to New Zealand, he wrote, D had not been referred to specialists but referrals had been made in the country of origin. He submitted that there had been no need for any referrals in New Zealand as D had managed well since coming to New Zealand. The plaintiff wrote much more extensively with regard to the second matter which related to the complainant.

[25] In her evidence Mrs Melding considered that the prescriptions for Ritalin, appended to the plaintiff’s letter in reply, and especially the quantity, led to further concerns as to the propriety of the treatment.

[26] Following the meeting, and after considering the plaintiff’s further response and any further material that may have been obtained, the Committee determined that a charge should be laid with the Tribunal and the form that charge should take.

Charge

[27] In May 2001 the Committee notified the charge that was laid. That notification was in these terms:

“DISCIPLINARY CHARGE

TAKE NOTICE that a Complaints Assessment Committee established under Section 88 of the Medical Practitioners Act 1995 has determined in accordance with Section 92(1)(d) of the Medical Practitioners Act that the complaint by [the complainant] against [the plaintiff] should be considered by the Medical Practitioners Disciplinary Tribunal. The Complaints Assessment Committee has reason to believe that grounds exist entitling the Tribunal to exercise its powers under section 109 of the Medical Practitioners Act 1995.

PARTICULARS OF CHARGE:

The Complaints Assessment Committee pursuant to section 93(1)(b) of the Medical Practitioners Act 1995 charges that [the plaintiff], Medical Practitioner, of [place name] between 1993 until 1999 acted in a way that amounted to disgraceful conduct in that:

1. He failed to obtain [the complainant’s] informed consent to forcibly administer psychotropic medications and anti-depressants to her when no committal order was in existence at the time and/or;

2. He failed to inform [name of hospital] by admission note when [the complainant] was admitted on or about 3rd February 1997 that he had been prescribing benzodiazapines for a prolonged period and/or;

3. He failed to keep a full and accurate record of [the complainant’s] mental state, his diagnosis and his prescribed treatment plan for her.

4. He prescribed Ritalin to his daughter, [D] without any supervision or monitoring from an independent general practitioner or psychiatrist; and/or

5. He self prescribed Imovane, a sleeping tablet, for a few months without any supervision or monitoring by another practitioner; and/or

6. He administered to [the complainant], psychoactive drugs, anti-depressants and tranquillisers from drug company samples without the drugs being formally prescribed and documented.

7. He treated [the complainant] and/or his children in circumstances where his clinical judgment was or could have been impaired, and where it was in the best interests of the patient to refer on to an independent general practitioner.”

[28] With regard to charges 4 and 7, Mrs Melding had this to say:

“In making a decision to lay the charges 4 and 7, the [Committee] were responding to an allegation about the prescription of Ritalin. The[Committee] were given two versions. [The complainant] alleges that [the plaintiff] was addicted to sleeping tablets and also inappropriately took Methylphenadate (Ritalin). [The plaintiff] denies this and states the Methylphenadate was for his daughter. I believe that, notwithstanding which of these prescribing practices is the truth, neither of them is appropriate professional practice.”

However the formal charge did not allege that the plaintiff had prescribed Ritalin for himself.

[29] The plaintiff contends that Particulars 4 and 5, and Particular 7 in so far as it relates to the children, were never notified to him as a complaint under s 90, and accordingly, were outside the power of the Committee to consider. The plaintiff claims that he was prejudiced and that he did not know the Committee was investigating those matters. In the result he did not prepare, and did not present the evidence he would have presented had he been properly notified.

[30] On the 5th Particular the plaintiff contends that he addressed the question of addiction to sleeping tablets, which he acknowledges to have been raised in the complaint, but not the question of self-prescription, which was not raised in the complaint. He deposed in his affidavit that had he known of the self-prescription allegation, he would have called expert evidence on that matter.

The issues in this proceeding

[31] The parties have no dispute that the determination of the Committee to lay a charge, and the framing of that charge, was the exercise, or purported to be the exercise, of a statutory power of decision affecting the rights or immunities of the plaintiff. This review is limited to the manner in which that statutory power has been exercised, or was purportedly exercised, and it is not an enquiry into the merits of that exercise. Put another way, this proceeding is concerned not with the decision but only with the decision-making process.

[32] The question of whether, in the exercise of this Court’s discretion, any alleged defects of process might be left to the cure of the Tribunal to hear the charges, at least in the first instance, was not raised in this proceeding now before me, the Tribunal merely appearing to abide the decision. It is a matter that might well be raised in another case, but the point not having been taken here, it is not considered. I need only note that to proceed to review a matter yet to be prosecuted to finality has precedence - see for example, Duncan v Medical Practitioners Disciplinary Committee [1996] 1 NZLR 513. As to the Tribunal’s own capacity to treat with alleged deficiencies in the inquiry stage, see Re R Medical Practitioners Disciplinary Tribunal, 5C, 11 July 1997, (P.J. Cartwright, convenor). In that case the Tribunal itself struck out and amended charges for want of proper process in the inquiry stage.

[33] Further, both parties acknowledged that the Committee was bound to observe procedural fairness, or in other terms, to observe the rules of natural justice. However, on a proceeding for judicial review of the exercise or purported exercise of a statutory power, it is first necessary to enquire of the procedure that the statute itself requires, either explicitly or by necessary implication. If there is a mandatory procedure set out or implied in the statute, then it must be followed.

[34] Following that line, Mr Knowsley, counsel for the plaintiff, submitted, that the first question is whether the Committee’s investigation and the laying of a charge that invokes

(a) The alleged prescribing of Ritalin by the plaintiff to his daughter;

(b) The alleged self-prescribing of Imovane; and

(c) The plaintiff’s alleged treatment of his own children

was outside their powers under the Medical Practitioners Act 1995. The plaintiff contends that the investigation and laying of charges in respect of those matters was outside the powers of the Act, in that they were not the subject of the complaint which was notified to the plaintiff pursuant to s 90 of the Act.

[35] If the plaintiff is correct in that submission, then that is an end to the matter.

[36] However, if the plaintiff is not correct in that submission, then a further question arises under the heading of procedural fairness. The question then is whether the Committee provided a proper opportunity to the plaintiff, to respond to the new allegations, having regard to the provisions of the Act.

[37] In this instance, the matter falls to be determined on questions of proper process, along the lines but not entirely in accordance with the plaintiff’s first question. Aspects of procedural fairness are necessarily interwoven.

Arguments

[38] Mr Knowsley for the plaintiff argued that the Committee was not entitled to enquire into and lay charges in relation to the three matters mentioned and for the reason given that they were not notified in writing to the plaintiff, pursuant to the s 90 notice. In his submission, the three matters constituted new or further material of which formal notice as required by the statutory process, had not been given. The question is jurisdictional, he submitted, calling for a prescriptive interpretation of the Act. By s 89 the Committee’s power to regulate its own procedure as it sees fit, is subject to the provisions of the Act. Section 90 of the Act obliges the President of the Medical Council to notify the practitioner of the “particulars of the complaint”. The Committee is obliged and empowered by s 92(2) to determine how the matter should be disposed of as soon as practicable after “the complaint is referred to it”. He submitted that that was a reference to the complainant’s complaint, and not to something else arising from it, whether of the complainant’s later volition, or from questioning.

[39] The sections to which Mr Knowsley referred, and others hereafter to be mentioned, have been appended to this decision.

[40] Mr Knowsley took no exception to the framing of the s 90 notice. Though it did no more than annex the written complaint without any attempt to identify the particular matters that the Council would refer to the Committee, he accepted that that done was a proper discharge of the President’s obligations. Mr Knowsley rather argued that the notice circumscribes the matters that the Committee may consider and that excludes any licence for the Committee to wander into areas outside the circle of the complaint.

[41] His reason for so arguing was that the purpose of the notice was not merely to inform, but was mainly to protect the practitioner’s right of silence, and the equal right to be heard, according to the practitioner’s choice. As provided for in s 92(3) the practitioner had rights and choices:

(i) To make or not to make a written statement, and if to do so

(ii) To decide what to include in any written statement:

(iii) To attend or not to attend a meeting, and if to attend

(iv) To decide what testimony to give or witnesses to call.

[42] Were the Committee to range beyond the areas of the complaint, those rights to formulate a considered response would be abrogated, he submitted. He challenged in that respect the decision of the Tribunal in Re R (supra) which held that if a matter “arose as a result of the initial complaint” it could be raised orally at a meeting so long as the practitioner was given a reasonable opportunity to comment.

[43] In the alternative, Mr Knowsley submitted, if a new matter arose, it had properly to be the subject of a fresh s 90 notification to preserve the considered response provided for in s 92(3).

[44] For the Committee, Ms Davenport sought a purposive approach to the interpretation of the Act. The principal purpose of the Act, as set out in s 3(1) was to protect the health and safety of members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practice medicine. That was the principal purpose, she submitted, but other purposes could be seen as well. One was to ensure a safe delivery of medical practice, and another, the protection of the public.

[45] Ms Davenport submitted that those purposes assist in the interpretation of Part VIII of the Act which governs disciplinary procedures. She submitted that the Act seeks to attain its purpose (as stated in s 3(1)) but providing, amongst other things, for the disciplining of medical practitioners. The disciplinary provisions in Part VIII reflect the purposes of the Act. By s 92 the Committee is not merely to charge or not to charge a practitioner on the basis of a complaint, but, may propose a competence review under Part V, a review of the practitioner’s ability to practice medicine under Part VII, or conciliation.

[46] In her written submissions as amplified in oral delivery, Ms Davenport submitted that the Committee had several roles. It filtered complaints, separating the wheat from the chaff in determining whether or not to take the complaint further. It allocated complaints to review, conciliation or adversarial processes. It translated complaints to charges, if that course was considered to be appropriate (s 93(1)(b)). It was then obliged to state that it has reason to believe that a ground exists entitling the Tribunal to impose the penalties prescribed according to the charge laid (s 102(3)) and finally, was to prosecute the charge at the hearing (s 102(4)(b)).

[47] The third aspect to Ms Davenport’s submission was that to perform those various roles, the Committee had necessarily to investigate. I understood her to accept that in the investigation of complaints and the consequential identification of further particulars or grounds to support a charge, the Committee could not unduly stray from the complaint itself. However, she submitted that a further purpose apparent from the Act related to the ease of public access to the Council for the purpose of complaining. Complaints can be made by “any person” and may be made either “orally or in writing” (s 83(1)). This necessarily required some investigation as to both the purport and substance of the complaint.

[48] Ms Davenport submitted that the test for determining whether further particulars should be added as a result of investigations, was whether those particulars arose naturally out of the subject matter of the complaint. She referred to the affidavits of the Committee members to the effect that in their views, the further particulars complained of arose naturally from responses to necessary inquiries into the subject matter of the complaint. Their concern is to the effect that if that was not allowed, complaints would not be adequately addressed, grave breaches of professional standards would pass by without comment or consideration, and the objectives of the Act would not be achieved.

[49] I entirely accept that the members have good reason to express those concerns but regrettably, in this instance, they are not directly in point.

Consideration of the arguments

[50] I accept Ms Davenport’s arguments that a purposive interpretation of the statute is required to give proper meaning and effect to various of its disciplinary provisions. Nonetheless, the practitioner’s rights, protected and guaranteed by s 92(3), to make or not to make a statement in relation to the complaint, or to appear or not to appear before the Committee in relation to the complaint, are fundamental. They so express the citizen’s right of silence and rights to be heard, that no purposive reading of the statute can have the effect of diminishing those rights or cancelling out one word of the section that protects them. In that respect, Mr Knowsley approach must be correct. I add only that s 92(3) merely gives practical effect to established rights in law, and that the rights themselves are larger than the statute expresses.

[51] In reviewing the arguments, the problem is broadly that counsel present competing and mutually exclusive propositions. Mr Knowsley argues that to maintain the plaintiff’s rights, the complaint must be kept within the clear confines of the complaint as laid. That may go too far but I have no doubt that Parliament intended that the practitioner’s rights, as given by statute, would be fully respected. Ms Davenport argues however, that to achieve the statutory objectives of safe medical practice and does open management of complaints, the Committee must be free to investigate fully the totality of a doctor’s conduct. That too may go too far, but equally, I have no doubt that Parliament intended to provide for easy public access to complaint procedures and also for full inquiries into complaints. The point however, is that these propositions are not inherently in conflict. Parliament also provided for a Committee with power to settle its own procedures, but the Committee has no free rein in doing so. It must settle upon procedures that are consistent with the Act itself. In brief, in this case, the Committee was obliged to find a process that would give full vent to the twin goals of adequate investigation and the protection and assurance of practitioner’s rights.

[52] I do not think there was a major difficulty in devising such a process for this case. First to consider is “the complaint”. That must be the starting point for “the complaint” is at the beginning and the end. It triggers all subsequent action, and where a conciliation, a charge or a determination to take no further steps is a likely outcome, each outcome must be considered only in the context of “the complaint”. The statute so says.

[53] The essential question is, then, - “what is the complaint?” I do not agree that “the complaint” is limited to the four corners of the written document of complaint or the sum total of the words that the President considers to reflect a complaint made orally. Any person may complain, and even orally. As a result, a complaint may be no more than a lay person’s expression of grievance without the finesse of a prosecutor’s indictment, the particularity of a lawyer’s statement of claim or the precision of a surgeon’s scalpel. And properly so. It would defeat the statutory objective of ready public access to control mechanisms, were complaints burdened by too great a need for formality or for funds. Equally, the complaint may not be properly focused, the complainant lacking the necessary medical expertise.

[54] These problems have been provided for. The Committees have the medical expertise and there is specific provision for access to legal opinions. The duty to establish the true nature and extent of the claim arises from the overall purpose and objectives of the Act. The duty to investigate thoroughly arises from the same source but is given emphasis by s 102. If a charge is to be laid, the Committee must declare that it has reason to believe that a ground exists for disciplinary penalties to be imposed, and then must, personally or by representative, prosecute the claim itself.

[55] The Committee therefore has many functions. It screens out unmeritorious matters. It directs claims to one of five possible outcomes. Then, if charges are contemplated, the Committee has further roles. Those roles are akin to the functions of an investigating constable who inquires, a lawyer who translates the complaint to justiciable form in the light of compiled evidence, and a prosecutor who advocates. The first task, however, is to define the complaint. The Committee must give expression to that which the complainant is unable to express, whether for reasons of emotional turmoil, lack of expert knowledge, or any other reason.

[56] The matter may be illustrated by a rhetorical question put by Ms Davenport:

“. . . what if a complaint was made by a member of the public about their doctor inappropriately prescribing antibiotics and it was discovered during the course of the investigation that in addition to the antibiotics, the doctor had also been prescribing a narcotic, or a poison to the patient?”

[57] As I see it, the subject of complaint is that the complainant is unwell for reasons attributed to the doctor. The cause of that unwellness is for the Committee to determine if it can. If satisfied that the cause is a narcotic or a poison, then the substantive complaint remains the same but it is refined by substituting the true cause. It is the complaint as eventually comprehended by the Committee, after examination, that constitutes “the complaint”.

[58] What then of the practitioner’s rights? While the President of the Council has a duty promptly to send particulars of the complaint to the practitioner, there is no similar requirement that the practitioner is to promptly respond. That must be so. Surely, the Committee has first to establish, by such inquiries as it can, of the complainant or by other means, the true nature and extent of the claim. Presumably, the Committee could seek discovery of particular records of the practitioner that are relevant to the complaint.

[59] Having defined a complaint, as the Committee understands it to be, the Committee has then to advise the practitioner of the true nature and extent of the complaint according to its deliberations. That may be done by setting out the issues as the Committee sees them in the light of its preliminary inquiries, but that is not the only way. It might equally indicate its suspicions or concerns. However, any failure to adequately disclose could well vitiate subsequent proceedings. The purpose must be to give full force and effect to the practitioner’s rights preserved by s 92(3). The practitioner is entitled to be so fully informed of the complaint as to predict the likelihood and nature of any charges, before deciding how to respond.

[60] The process adopted in this case did not protect those rights. The plaintiff was invited to respond even before the Committee had taken steps to ascertain the true nature of the claim. Properly, in my view, the plaintiff should have been cautioned not to respond at all, until that preliminary inquiry had been made, and the Committee was able to advise of its understanding of the true nature and extent of the complaint. In fact the Committee never did advise of its understanding of the complaint, or of the issues. Indeed, on the evidence, the Committee members themselves were not of common mind on what the issues actually were, after its initial, meetings in December 2000 and February 2001. It cannot be said that matters were improved after the meeting with the complainant, for the Committee met with the plaintiff immediately thereafter.

[61] I come then to the other aspect of Ms Davenport’s question. What if the prescribing of narcotics or poison emerged only after hearing the plaintiff, or in the course of hearing the plaintiff and after completion of the preliminary process of clarifying the complaint? I should think the same principles must apply. The complaint is still the complaint, but the particulars of the complaint, the cause of the malady, may be redefined. However, the practitioner must be cautioned immediately, about the practitioner’s rights to say no more, or to take time out, to formulate a considered response.

[62] Another purpose of the preliminary procedure is to ensure that “the complaint” is in fact the complainant’s complaint. I am inclined to agree with both counsel that the inquiry must be constrained and should not, except by formal determination made under s 92, be converted into an audit of the whole of a practitioner’s affairs. A difficulty in this case has been, that it is not entirely clear from the affidavits, whether the complainant was positively complaining about the further matters that were introduced, or whether they reflected the Committee members’ own concerns. The founding letter of complaint was undoubtedly focused to the relationship between the complainant and the plaintiff and no-one else. The only exception, a sentence in a sea of paper, was the statement that the plaintiff was addicted to sleeping tablets, which in context, appeared as something as a throw-away line.

[63] It is entirely open to a complainant to insist that the matter to be tried, or heard, be only that which the complainant complains of, so that the investigating or inquiring body is not distracted from the complainant’s primary concern.

[64] What happens then, if the Committee becomes aware of other serious breaches of professional standards, presaging a public risk, but the complainant will not incorporate them into the complaint? Any person may lay a complaint, and without limiting the generality of that provision, that includes a member of the Council or of the Tribunal. Presumably, the same must apply to a member of the Committee. In any event, there is room for a further complaint to be made independently of the original complaint. It may be, that the complaint from the member of the public, and a complaint from within the Council, may be heard at one and the same time, but as I see it, the complainant who is a member of the public, remains entitled to insist that the Tribunal makes a separate finding in respect of that complaint.

Consideration of the facts

[65] In now reverting to the facts I found as follows:

Particular 4 - prescribing Ritalin to D

(i) It was not disputed that the particulars of complaint notified to the plaintiff pursuant to s 90, contained no allegation of prescribing Ritalin to D.

(ii) On the evidence, this matter arose prior to a meeting with the plaintiff, and subsequent to his written statement to the Committee, after the Committee had met with the complainant. It was not a matter that the complainant had an opportunity to consider before submitting a written statement.

(iii) On the evidence, the plaintiff was not advised of this complaint before attending the meeting. Further, the strong inference from Mr Gluckman’s evidence, and one which I now draw, was that the allegation was not put to the plaintiff before he was questioned on matters material to it. The evidence is that Mr Gluckman introduced the topic by asking whether D had Attention Deficiency Disorder. The consequential replies followed without any warning that there was an allegation of prescribing Ritalin to D, that that allegation was seen by the Committee to form part of the complaint, and that that allegation was one on which the Committee might rely in formulating a charge.

[66] I am satisfied that the plaintiff’s rights were prejudiced as a result.

[67] In addition, there is no evidence that the complainant wished to make any complaint of this matter. The evidence is rather that the Committee was concerned about it.

[68] Particular 5 - Self-prescribing Imovane

(i) No allegation of self-prescribing Imovane, or any other drug, was made in the particulars notified under s 90. A statement was made only that the plaintiff was addicted to sleeping tablets.

(ii) When the plaintiff responded, as he was invited to do, and disclosed that he was possessed of Imovane, he was not informed that any question of self-prescribing was in issue, or was a matter within the purview of the complaint.

(iii) It was not put to the plaintiff before he was questioned, that the Committee had drawn an inference that the plaintiff had self-prescribed Imovane, or possibly Ritalin, that the Committee regarded that as arising from the complaint, and that the Committee might rely upon the allegation in formulating a charge.

[69] I am satisfied that the plaintiff’s rights were prejudiced as a result.

[70] In addition, there is no evidence that the complainant complained of self-prescribing by the plaintiff. The evidence is rather that the Committee inferred from the plaintiff’s reply, that the Imovane in his possession was self-prescribed.

[71] Particular 7 - treatment of children

(i) No complaint or allegation was made in the particulars as notified, that the plaintiff treated his children.

(ii) The inference that the plaintiff had done so was drawn from statements by the complainant at her interview.

(iii) It was not put to the plaintiff, prior to questioning, that his treatment of his children was a matter which the Committee considered was an issue as arising from the complaint and that it could lead to charges against him.

[72] I am satisfied that the plaintiff’s rights were prejudiced as a result.

[73] In addition there is no evidence that the complainant wished to include this matter in her complaint. The concerns expressed in the affidavits, appear to be the Committee’s own concerns.

[74] In so far as matters may have arisen out of the Committee’s own concerns. I find that no further complaint was made by any person and was notified, as was required, under s 90. More broadly however, the Committee failed to define the extent and nature of the complaint before inviting any response at all, and failed to caution the plaintiff not to respond until that had been done.

Final conclusions

[75] The various respects in which the plaintiff’s rights were prejudiced, arise, in my finding, from a failure to adopt a process that was consistent with the aims and objects of the Act. The legal presumption is that the legislature expects those entrusted with a statutory power, to adopt a process that conforms with the Act, and which preserves such rights as are given by it.

[76] A process that gave effect to those rights, and was consistent with the object of the Act, was available. It is also to be borne in mind that the plaintiff is charged with the superlative in statutory gradations of medical culpability, with disgraceful conduct, and which is the only charge for which a practitioner might be struck off the register. While that is said with hindsight, that prospect ought to have been apparent from the start. So much more was the need to ensure that the process adopted for this case, was one that was commensurate with its gravity, and was one that commenced with an inquiry as to the true nature and extent of the complaint. I do not suggest that such a process should be followed in all cases. Each case must be looked at according to its own circumstances. But a process of that kind was necessary in this instance.

[77] There is no cause to exercise any discretion I might have that would enable the matter to be considered afresh. The damage done cannot be undone. The plaintiff is entitled to the relief sought.

[78] Accordingly there are orders as follows:

(1) There is a declaration that the Committee’s inquiries into the matters contained in Particulars 4, 5 and 7, the latter in so far as it relates to the children, was invalid.

(2) There is a declaration that the Committee’s laying of the charge containing Particulars 4, 5 and 7, the latter in so far as it relates to the children, is invalid.

(3) There is an order quashing the charge so far as it relates to Particulars 4, 5 and that part of 7 as refers to the children.

(4) There is an order that the Medical Practitioners Disciplinary Tribunal not hear Particulars 4, 5 and that part of 7 as refers to the children.

[79] The plaintiff is entitled to costs on the basis of category 2b.

[80] There is an order prohibiting disclosure of any particulars in this decision that might identify the plaintiff or members of his family. A further order is made prohibiting searching of the file by any person other than counsel involved in the proceedings without leave of the Court.

Appendix

Medical Practitioners Act 1995

“3 Principal purpose

(1) The principal purpose of this Act is to protect the health and safety of members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practise medicine.

(2) Without limiting the generality of subsection (1) of this section, this Act seeks to attain its principal purpose by, among other things,

(a) Imposing various restrictions on the practice of medicine:

(b) Providing for the registration of medical practitioners, and the issue of annual practising certificates:

(c) Providing for the review of the competence of medical practitioners to practise medicine:

(d) Providing for the notification of any mental or physical condition affecting the fitness of a medical practitioner to practise medicine:

(e) Providing for the disciplining of medical practitioners:

(f) Providing certain protections for medical practitioners who take part in approved quality assurance activities.”

“89 Complaints assessment committee to regulate own procedure

(1) Subject to this Act and any regulations made under this Act, a complaints assessment committee may regulate its procedure in such manner as it thinks fit

(2) A complaints assessment committee may appoint a legal assessor, who, subject to subsection (3) of this section, may-

(a) Be present at meetings of the committee; and

(b) At any time advise the committee on matters of law, procedure, or evidence.

(3) No legal assessor shall be entitled to be present during the deliberations of a complaints assessment committee.”

“90 Information to be given to practitioner and complainant

Where a complaint about, or a notice of conviction of, a medical practitioner is referred to a complaints assessment committee, the president shall ensure,-

(a) That the medical practitioner is advised, as soon as practicable, by notice in writing, of-

(i) The particulars of the complaint or conviction; and

(ii) The intended membership of the complaints assessment committee that is to consider the complaint or conviction; and

(b) In the case of a complaint, that the complainant is advised, as soon as practicable, by notice in writing, of the intended membership of the complaints assessment committee that is to consider the complaint.”

“91 Requests for changes to membership of complaints assessment committee

(1) Within 5 working days of being informed under section 90 of this Act of the intended membership of the complaints assessment committee that is to consider a complaint about, or conviction of, a medical practitioner,-

(a) That medical practitioner; or

(b) In the case of a complaint, the complainant,-

or both, may request that any or all of the intended members not be appointed as members of that committee.

(2) Every such request shall be made in writing to the president, and shall be accompanied by the reasons for the request.

(3) The president shall have regard to any request made under this section, but shall not be obliged to comply with it.”

“92 Determination of complaint by complaints assessment committee

(1) On the referral to a complaints assessment committee under section 87 of this Act of a complaint or notice of conviction in relation to a medical practitioner, the complaints assessment committee shall determine whether,-

(a) The Council should review, under Part 5 of this Act, the competence of the practitioner to practise medicine; or

(b) The Council should review, under Part 7 of this Act, the ability of the practitioner to practise medicine; or

(c) In the case of a complaint, the complaint should be the subject of conciliation under section 94 of this Act; or

(d) The complaint or conviction should be considered by the Tribunal; or

(e) No further steps should be taken under this Act in relation to the complaint or conviction.

(2) A complaints assessment committee shall make a determination under subsection (1) of this section as soon as reasonably practicable after the complaint or notice of conviction is referred to it.

(3) Before a complaints assessment committee makes a determination under subsection (1) of this section,-

(a) The committee shall give the medical practitioner concerned and, in the case of a complaint, the complainant a reasonable opportunity to make a written explanation or statement in relation to the complaint or conviction; and

(b) The committee may, on the application of the medical practitioner concerned or the complainant, or on its own motion, give that medical practitioner and, where applicable, the complainant a reasonable opportunity to appear before the committee to make an explanation or statement in relation to the complaint or conviction.

(4) A complaints assessment committee may require that any complaint referred to it under section 87 of this Act be supported by such statutory declaration as it thinks fit.”

“93 Procedure after complaints assessment committee makes determination

(1) A complaints assessment committee shall,-

(a) In the case of a determination made under paragraph (a) or paragraph (b) of section 92(1) of this Act, give written notice of that determination, and the reasons on which that determination is based, to,-

(i) The Registrar; and

(ii) The medical practitioner concerned; and

(iii) In the case of a complaint, the complainant:

(b) In the case of a determination made under paragraph (d) of section 92(1) of this Act,-

(i) Frame an appropriate charge and lay it before the Tribunal by submitting it in writing to the chairperson of the Tribunal; and

(ii) In the case of a complaint, give written notice of that determination to the complainant:

. . . ”

“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.”