Ranchhod v A Professional Conduct Committee Established under the Health Practitioners Competence Assurance Act 2003 HC Auckland CIV 2010-404-008009

[2011] NZHC 639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-008009

UNDER  Section 106 of the Health Practitioners

Competence Assurance Act 2003

IN THE MATTER OF     an appeal against a Determination of the Health Practitioners Disciplinary Tribunal Decision No. 337/MED10/161P

BETWEEN  DR RATILAL MAGAN RANCHHOD Appellant

ANDA PROFESSIONAL CONDUCT COMMITTEE ESTABLISHED UNDER THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003, WELLINGTON

Hearing:         18 May 2011

Counsel:         P J Andrew for the Appellant

M K Thomas and D Horton for the Respondent

Judgment:      14 June 2011 at 2:00 PM

RESERVED JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 June 2011 at

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

DR RM RANCHHOD v PROFESSIONAL CONDUCT COMMITTEE HC AK CIV 2010-404-008009 14 June

2011

Introduction

[1]      Dr  Ranchhod  appeals  a  decision  of  the  Health  Practitioners  Disciplinary Tribunal  given on  9  November 2010.    The appeal  is  brought  on  the  following grounds:

a)        There has been a breach of the rules of natural justice.

b)The Tribunal erred in attaching weight and importance to the fact that there had been 16 previous complaints against Dr Ranchhod;

c)        The Tribunal erred in imposing a two-year suspension.

d)       The Tribunal erred in requiring Dr Ranchhod to pay costs of $18,000.

Factual Background

[2]      A Professional Conduct Committee appointed by the Medical Council of New Zealand under s 71 of the Health Practitoners Competence Assurance Act 2003 (the Act) charged Dr Ranchhod with professional misconduct.  The particulars of the charge were as follows:

a)       That on or about 17 July 2009 and 30 October 2009, Dr Ranchhod practised medicine while not holding a current Annual Practising Certificate or Interim Practising Certificate;

b)That on or about 20 November 2009, Dr Ranchhod practised medicine outside the conditions imposed on his Interim Practising Certificate which was valid from 2 November 2009 to 31 May 2010, and

c)       That  on  or  about   12   February  2010   and   17  February  2010, Dr Ranchhod  practised  medicine  during  a  period  of  suspension imposed by the Health Practioners Disciplinary Tribunal.

It  was  alleged  that  the  conduct  in  a)  to  c)  either  separately,  or  cumulatively, amounted to professional misconduct under s 100(1)(a) and/or (b) of the Act.

[3]      The matter came before the Health Practitioners Disciplinary Tribunal on

4 October 2010.    The  Tribunal  comprised  five  members, Mr  D M  Carden  (the

Chair), Drs J Kimber and T Turnbull, Ms B Ross and Professor P Stone.

[4]      Dr Ranchhod admitted the charge and accepted that his conduct amounted to professional misconduct.

[5]      The Committee and Dr Ranchhod had agreed a summary of facts, and it was presented to the Tribunal.  Relevantly, it recorded as follows:

2.        Between 1997 and 2008, the Medical Council received a total of 16 complaints about Dr Ranchhod.  Some of these complaints were investigated and found not to have breached any standards, but in others Dr Ranchhod’s manner   of   response   and   communication   skills   were   found   to   be inappropriate.

[6]      The Tribunal held that Dr Ranchhod was guilty of the charge which had been laid against him.  It then proceeded to consider the appropriate penalty.  It received and considered a written statement from Dr Ranchhod.  He gave further evidence in relation to penalty, and he was cross-examined and then re-examined.   Questions were also asked by Tribunal members.  The Tribunal then heard submissions from counsel for both the Professional Conduct Committee and Dr Ranchhod.   It then delivered an oral decision on penalty.  Its oral decision was confirmed in the written ruling issued on 9 November 2010.  The penalty imposed was as follows:

a)       Dr Ranchhod was censured.

b)       Dr  Ranchhod’s  registration  was  suspended  for  two  years  as  from

4 October 2010, and conditions were imposed on his resumption to practise.

c)       The Tribunal authorised the issue of an Interim Practising Certificate for the day(s) required for Dr Ranchhod to sit an examination known as the ―Primex‖ clinical examination.

d)Dr Ranchhod was ordered to pay $18,000 forthwith towards the costs of the prosecution, to be divided equally between the Professional Conduct Committee’s and the Tribunal’s costs.

e)        Dr Ranchhod’s application for an order prohibiting the publication of

his name or other particulars was declined.

f)        The Tribunal ordered that a copy of its decision and a summary were to be published on the Tribunal’s website.  It also ordered that a notice stating the effect of the Tribunal’s decision was to be published in the New Zealand Medical Journal.

The Notice of Appeal

[7]       The Tribunal’s decision was issued under ss 100(1) and 101 of the Act.

[8]      Section 106(2) provides that a person aggrieved by a finding made under s

100, or by an order made under s 101, may appeal to this Court against the whole, or any part of the finding or order.

[9]      The appeal alleges that the Tribunal erred in the various respects noted in [1]

above.

[10]     Any appeal is by way of re-hearing, and the Court is given the necessary powers to confirm, reverse or modify the decision or order appealed against, or to make any other decision or order that the Tribunal could have made.1    In addition, the Court can direct the Tribunal to reconsider, either generally, or in respect of any specific aspect, the whole or any part of the decision or order.2

[11]     In part, this appeal is against the exercise by the Tribunal of its discretion to determine the appropriate penalty.  It was common ground that the structuring of the penalty  decision  is  quintessentially  the  exercise  of  the  discretion  vested  in  the

Tribunal as a body that has experience in the area.  Counsel acknowledged that the

1      Health Practitioners Competence Assurance Act 2003, ss 109(2) & (3).

2      Ibid, ss 109(3)(b) & 111.

principles discussed in Austin, Nichols & Co Inc v Stichting Lodestar3 do not apply in such circumstances, and that it is for the appellant to show that the Tribunal made an  error  in  principle,  considered  irrelevant  matters,  failed  to  consider  relevant matters, or was plainly wrong.4   It was accepted that the principles discussed by the Court of Appeal in May v May5apply.

Breach of the Rules of Natural Justice

Factual basis for the challenge

[12]     This ground of appeal arises from a disclosure made by the Chair of the Tribunal when the hearing commenced.   The transcript records that the Chair introduced himself and his fellow Tribunal members.  One of the persons introduced was a Dr Tessa Turnbull, who the Chair described as being a general practitioner from Katikati.  The Chair then stated as follows:

Before we go any further, I need to just ask you to think about Dr Tessa Turnbull who is on the Tribunal.  She has indicated to me, and I have said we should make it clear to the parties, that she has been, some years ago, an independent consultant to the Health and Disability Commissioner on two resthome cases involving Dr Ranchhod.  It was some years ago, she does not consider it is a conflict of interest for her to sit on this Tribunal but it is something that we should bring to your attention and see if there’s any objection to that.  Do you first want to consult —

MS GOFFIN:  No

CHAIR:         You have no objection?

MS GOFFIN:  No objection.

CHAIR:         Mr Heron?

MR HERON:  No, thank you.

[13]     Ms Goffin was appearing for Dr Ranchhod.  Mr Heron was appearing for the

Professional   Conduct   Committee.      There   had   been   no   prior   disclosure   of

Dr Turnbull’s involvement in the two rest home cases.

3      Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).

4      See GS v Professional Conduct Committee [2010] NZAR 417 (HC) at [13]–[14].

5      May v May (1982) 1 NZFLR 165 (CA).

[14]     As  noted  above  at  [5],  the  agreed  summary of  facts  referred  to  various complaints which had been laid with the Medical Council about Dr Ranchhod.  The complaints included the two rest home cases which came before the Health and Disability Commissioner.

[15]     When  the  Tribunal  was  considering  the  issue  of  penalty,  the  previous complaints were discussed.   Ms Goffin submitted there had been no complaints against Dr Ranchhod amounting to negligence or malpractice, and that no harm had come to any patient under his care.  She observed that no breaches were established, except in one case which came before the Tribunal.   The Chair of the Tribunal suggested to Ms Goffin that it must be relevant that the complaints did lead to a charge before the Tribunal.  Ms Goffin replied that Dr Ranchhod had been seeing a very high number of patients, and that no breaches were established, albeit that concerns were raised.

[16]     In the course of its oral decision on penalty, the Tribunal stated as follows:

We have looked carefully at the history of the matter.   We have looked carefully at the fact that there were complaints, and 16 of them we think is quite a number, despite what your submissions have said and despite the number of patients you say you were caring for.  16 is a significant number of complaints.

That led to the Council having to eventually consider your Practising Certificate requirements and that, in turn, meant that it decided that there should be no longer a renewal of your Practising Certificate.

[17]     In its written decision, the Tribunal observed as follows:

58.      Issues of significant concern to the Tribunal in this care are these:

…

58.4     By July 2008 there had been 16 complaints made against him.   The Tribunal considers that to be a significant number of complaints.  The Medical Council had to consider those carefully in the context of renewal of his Annual Practising Certificate.  That led it to decide not to renew that certificate.

…

[18]     Clearly, the fact that there were earlier complaints was a matter of significant concern to the Tribunal and both the fact of the complaints and the number of complaints were taken into account by it in its decision on penalty.

Submissions

[19]     Mr Andrew appearing for Dr Ranchhod, submitted that a decision maker, exercising a statutory power of decision, must be sufficiently free of any conflict of interest or prejudgment in a matter so as to be able to act fairly in the decision making  process,  and  to  be  seen  to  be  acting  fairly.    He  noted  that  context  is important, and that here, the context involved disciplinary proceedings where the consequences of the Tribunal’s decision were of great significance to Dr Ranchhod. He  submitted  that  the  Tribunal  breached  the  rules  of  natural  justice,  and  that Dr Turnbull’s earlier involvement in two of the complaints against Dr Ranchhod created the appearance of bias.   He submitted that a fair minded observed would conclude that there was a real possibility that Dr Turnbull might not have brought an impartial mind to the determination of penalty and costs.

[20]     Mr  Thomas  for  the  Committee,  submitted  that  the  Tribunal  properly disclosed Dr Turnbull’s involvement to Dr Ranchhod and his counsel at the outset, and that Dr Ranchhod was given a clear opportunity to raise any concerns regarding Dr Turnbull’s involvement.  He accepted that the potential conflict could, and should have, been disclosed earlier, but submitted that in the circumstances, any objection had been waived.

Analysis

[21]     The law in this area has recently been comprehensively examined by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.6    The Court held unanimously, that subject to waiver and necessity, a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that there was a real and not remote possibility that  the Judge  might  not  bring  an  impartial  mind  to  the

resolution of the question the Judge was required to decide.  The Court emphasised

6      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd[2010] 1 NZLR 35 (SC).

that there should be no attempt to predict or inquire into the actual thought processes of the Judge.   Rather, it is necessary first to identify what it is said might lead a Judge to decide a case other than on its legal and factual merits, and secondly, to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.7

[22]     Bias can be made out even if the decision maker’s knowledge was only affected subconsciously,8 or if there is a real possibility that the decision maker had preconceived ideas towards a party or issue.9

[23]     Here,  it  is  clear  from  the  disclosure  that  was  made  by  the  Chair  that Dr Turnbull had some involvement in two of the earlier complaints made against Dr Ranchhod.    She was  an  independent  consultant  to  the Health  and  Disability Commissioner  in  relation  to  those  two  complaints.     It  is  relatively  common knowledge that complaints about healthcare providers can be made to the Commissioner, and that the Commissioner investigates and reports on the same.  A fair-minded lay observer to whom not too much legal knowledge is ascribed, would in my view, have been aware of this general process.  Moreover, a fair-minded lay observer would consider that an independent consultant to the Commissioner is someone who the Commissioner consults when considering such complaints and that accordingly, the consultant would acquire knowledge of the same.  This knowledge could lead the independent consultant, when later sitting as a Judge in a case involving the healthcare provider, to decide the case other than on its legal and factual merits.

[24]     Further, there is a logical connection between an investigation into the two earlier complaints involving Dr Ranchhod, and the Tribunal’s decision on the appropriate penalty to impose in respect of the admitted professional misconduct. Put simply, a doctor’s track record of complaints, and how they have been dealt with

and resolved, is a matter which can properly be taken into account in determining the

7      Ibid, at [3]–[4], [37], [89], [127]; and see Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2010] 1 NZLR 76 (SC); Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2011] NZSC 12; Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA).

8      Re Sutherland (deceased) [1994] 2 NZLR 242 (HC).

9      Black v Black [1951] NZLR 723 (SC); English v Bay of Islands Licensing Ltd [1921] NZLR 127 (SC).

appropriate  penalty  in  relation  to  any  subsequent  charge.    If  a  member  of  the Tribunal has a greater knowledge of the facts surrounding the earlier complaints than is  disclosed to the Tribunal,  either through  an  agreed  statement  of facts,  or  by evidence, there is a risk that that member’s knowledge could lead to a deviation from the course of deciding the appropriate penalty on the merits.

[25]     In my view, a fair-minded lay observer could reasonably apprehend in the circumstances of the present case, that there was a real, and not a remote possibility, that  Dr Turnbull  might  not  bring  an  impartial  mind  to  the  imposition  of  the appropriate penalty on Dr Ranchhod for his admitted professional misconduct.

[26]     The parties had prepared an agreed statement of facts, no doubt carefully, and with  full  knowledge  of  all  relevant  circumstances  arising  out  of  the  earlier complaints.   The agreed statement of facts referred to the earlier complaints in relatively neutral terms, and recorded that some of the complaints were investigated and  found  not  to  have  breached  any  standards,  but  that  in  others,  it  was Dr Ranchhod’s manner of response and communication skills which were found to be inappropriate.   The  parties, and  Dr Ranchhod  in  particular,  were  entitled  to assume that this was the only information regarding the earlier complaints which would be before the Tribunal and taken into account by it.

[27]     A party potentially affected by apparent bias has the right to object to the decision maker’s apparent bias, as well as the right to waive the decision maker’s disqualification.10     As the Supreme Court observed in Saxmere, apparent bias is subject to ―waiver and necessity‖.

[28]     Waiver can be either express or implied.   It must however be clear and unequivocal, and freely given with full knowledge of all relevant facts.11   There is a helpful discussion in the judgment of the Court of Appeal in the United Kingdom in

Jones v DAS Legal Expenses Insurance Co.12   The Court there noted as follows13:

10     Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA).

11     Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; R v Bow

Street Metropolitan Stipendiary Magistrate Ltd Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119 (HL) at 137.

12     Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA CIV 1071.

13 At [35].

…

iv)       A full explanation must be given to the parties.   That explanation should detail exactly what matters are within the Judge’s knowledge which give rise to a possible conflict of interest.  The Judge must be punctilious  in  setting  out  all  material  matters  known  to  him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day.   The parties deserve also to be told whether it would be possible to move the case to another Judge that day.

v)        The options open to the parties should be explained in detail.  Those options are, of course, to consent to the Judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object.  The other option is to apply to the Judge to recuse himself.  The parties should be told it is their right to object, that the Court will not take it amiss if the right is exercised and that the Judge will decide having heard the submissions.  They should be told what will happen next.  If the Court decides the case can proceed, it will proceed.  If on the other hand the Judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.

vi)       The parties should always be told that time will be afforded to reflect before electing.  That should be made clear even where both parties are represented.   If there is a litigant in person the better practice may be  to  rise  for  five  minutes.   The  litigant in person  can be directed to the Citizens Advice Bureau if that service is available and if he wishes to avail of it.  If the litigant feels he needs more help, he can be directed to the chief clerk and/or the listing officer.  Since this is a problem created by the Court, the Court has to do its best to assist in resolving it.

…

[29]     In  Saxmere,  members  of  the  Court  suggested  that  Judges  should  make disclosure in writing through the Registrar of anything which, at first blush, might attract attention, so that the parties could consider the situation and either indicate lack of concern, or make an application for recusal upon which full consideration could be given to the matter.   Blanchard and Tipping JJ noted that a Judge who makes such disclosure must ensure that the parties have enough information, shorn of unnecessary detail, to make up their minds whether to make an application for

recusal.14

14 See at [31], [32], [33], [34], and [48]. McGrath J was also critical of the adequacy of disclosure in that case: at [114].

[30]     In the present case:

a)        The disclosure was made at the commencement of the hearing. b)     It was unexpected.

c)        The disclosure did not detail what matters were within Dr Turnbull’s

knowledge.

d)There was no explanation given as to why the problem was disclosed only when the hearing commenced.

e)        The options were not explained.

f)        The parties were not told what would happen if Dr Turnbull were to stand aside.

g)       The parties were not told that they could have time to consider their positions before electing whether to continue, although the Chair did start  to  offer  Ms  Goffin  the  opportunity  to  discuss  matters  with Dr Ranchhod.     She  declined  that  opportunity,  and  immediately confirmed that there was no objection to Dr Turnbull sitting on the Tribunal.

h)The statement made by the Chair that Dr Turnbull did not consider that there was  a conflict of interest  carried with it an element of predetermination on any possible recusal at least by Dr Turnbull and this placed the parties in a difficult position.

[31]     Mr Andrew submitted that Ms Goffin did not object to Dr Turnbull sitting on the case, on the understanding and expectation that the previous complaints were irrelevant,  and  would  not  be  taken  into  account  by the  Tribunal.    There  is  no evidence of that understanding before me.   I do however, accept that Ms Goffin could reasonably have expected that the Tribunal would only take into account the

reference in the agreed statement of facts to the previous complaints, and that it would not take into account anything else in relation to them.

[32]     In my view, the disclosure made was inadequate, in the circumstances of this case.  I cannot be confident that the waiver given by Ms Goffin was freely given on a fully informed basis, and that she did not simply acquiesce, given the pressures of the hearing, and the desire to get the matter over and done with.

[33]     In my judgment, Dr Turnbull should not have sat on the matter and the appropriate course is to set aside the Tribunal’s decision on penalty and costs, and send the matter back for reconsideration by a  properly constituted Tribunal.   It follows that it would be inappropriate for me to deal with any of the other points raised in the notice of appeal.

[34]     I should emphasise that nothing that I have said should be taken as reflecting adversely on Dr Turnbull.  The finding of apparent bias casts no personal aspersions on  her.    Rather,  I  have  reached  a  different  conclusion  than  that  reached  by Dr Turnbull  as  to  what  a  fair-minded  lay  observer  might  reasonably  have apprehended in the circumstances of this case.  There is no suggestion of actual bias by Dr Turnbull.  Nor can there be.

[35]     I make an order setting aside the penalty and costs decision of the Tribunal.  I direct that the appropriate penalty and any costs order is to be reconsidered by an appropriately qualified Tribunal.

[36]     Dr Ranchhod is entitled to his reasonable costs and disbursements in relation to this appeal.

[37]     I would invite counsel to endeavour to agree on the same.  If they are not able to do so, I direct that Dr Ranchhod is to file an application seeking costs within 10 working days of the date of this judgment.   Any response is to be filed within a further five working-day period thereafter.  I will then deal with the issue of costs on the papers, unless I require the assistance of counsel.

Wylie J

Distribution:
P J Andrew: [email protected] and [email protected]
M Heron: [email protected]
M Thomas: [email protected]