The Complaints Assessment v The Queen
[2002] NZCA 144
•20 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 282/01 |
| BETWEEN | THE COMPLAINTS ASSESSMENT COMMITTEE |
| Appellant |
| AND | R |
| First Respondent |
| AND | THE MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL |
| Second Respondent |
| Hearing: | 10 June 2002 |
| Coram: | Blanchard J Doogue J Fisher J |
| Appearances: | K G Davenport for Appellant |
| Judgment: | 20 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY FISHER J |
Introduction
The first respondent, Dr R, is a registered medical practitioner practising in New Zealand. His ex‑wife, Mrs R, laid a complaint with the Medical Council alleging that during their marriage he had been guilty of misconduct as a medical practitioner in relation to her and arguably others. Pursuant to the Medical Practitioners Act 1995 the President of the Medical Council set up the appellant Complaints Assessment Committee to investigate her complaints. After considering the matter the Committee laid charges with the second respondent, the Medical Practitioners Disciplinary Tribunal.
Dr R brought judicial review proceedings in the High Court alleging that the charges laid by the Committee went beyond the scope of his former wife’s complaint. In the High Court Durie J upheld his claim and struck out the charges. From that decision the Committee has appealed.
The appeal turns largely on the interpretation of the Medical Practitioners Act 1995. The legal questions raised are whether the Committee has the power to lay a charge that goes beyond the allegations made in the original complaint, the manner in which the scope of the original complaint is to be determined, and the available alternatives where fresh allegations emerge in the course of the Committee’s investigations.
Factual background
Dr R and Mrs R had three children. They separated in the late 1990s. On 4 March 2000 Mrs R wrote to the Registrar of the Medical Council complaining about Dr R’s conduct. The letter began:
I, [Mrs R] hereby make a formal complaint under the Medical Practitioners Act 1995, involving Medical Misconduct and maltreatment, starting in October 1996, until December 1997: Inappropriate, improper, excessive, indiscriminate and reckless prolonged prescription of dangerous addictive drugs to me. [Dr R] is also addicted to sleeping tablets.
This complaint is against my husband [particulars of Dr R and his practice given].
1.)Since October 1996, [Dr R], forced me under duress to take harmful drugs, i.e. Prozac, Aropax, Aurorix, Prothiaden, Rohypnol, Buspar, Tofranil, Anafranil, Serepax, Ativan, Oxazepam, Imovane, Lexotan, Thioridazine 10 mg bd & 25 mg at night, Melleril, Dothiepin 125 mg nocte and others, without informed choice and informed consent. My husband’s medical maltreatment and subsequent emotional and verbal abuse started in October – November 1996. It continued until December 1997.
2.)On 3 February 1997, he instigated my committal to [psychiatric ward of named hospital] against my wishes. He left me there at about 10 pm, with the excuse of having to pick up one of our children at a dancing class. He went home, packed a suitcase and delivered it to me at the hospital. I was shocked to find out that I was forced into hospital. I did not have time to say goodbye to my children. He told my children that I had a personality disorder and that I had only 3% chance of being normal ever.
The letter went on to outline her subsequent experiences including the allegation that Dr R continued to force her to take harmful drugs after she was discharged from the hospital.
On 15 June 2000 the Medical Council sent Dr R a copy of Mrs R’s letter. The Medical Council’s covering letter outlined the procedure that would be followed once the matter had been referred to a Complaints Assessment Committee. It included the advice that Dr R would be given the opportunity to respond to the complaint before the Committee made its determination. Shortly after this the Council President appointed a Complaints Assessment Committee.
On 14 July 2000 Dr R sent a letter in reply. He outlined in some detail his response to Mrs R’s complaint. He admitted that he had prescribed drugs for his wife but denied that he had forced them on her or that they were harmful or inappropriate. He admitted taking her to the hospital but said that responsibility for the final committal lay with other doctors. As to the allegation that he was addicted to sleeping tablets he said this:
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 [year given] I had about four month’s supply of Imovane.
Dr R engaged counsel who wrote to the Committee on 20 December 2000. In the letter his counsel made certain requests over arrangements for the hearing that the Committee had agreed to provide, outlined further facts relevant to the complaint, and explained where relevant medical records were.
The Committee had two preliminary meetings on its own. It then held separate meetings with Mrs R and Dr R in person on 2 February 2001. In its meeting with Mrs R members of the Committee asked her about Dr R’s responsibility for her committal to hospital, the prescription of drugs for her, and Dr R’s alleged addiction to sleeping pills. In the course of those discussions Mrs R said that Dr R had been self-prescribing his own Imogen sleeping tablets and further that for years he had been prescribing the amphetamine Ritalin for their daughter D. Later on the same afternoon the Committee had its meeting with Dr R. At that meeting members of the Committee asked him about all of those allegations including the self‑prescribing and the prescribing for his daughter.
On 24 February 2001 the Committee wrote to Dr R seeking clarification of the matters discussed on 2 February. As to prescribing for the daughter, the Committee said this:
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 [daughter’s name]’s condition, (c) copies of referral notes to specialists (educational) for the confirmation of and assistance in managing [daughter’s name]’s ADD and (d) referrals by you to and from Doctors and or specialists in South Africa.
By letter of 22 March 2001 Dr R replied in detail to the matters raised in the Committee’s letter.
Having considered all the material then before it, the Committee decided to lay a charge before the Medical Practitioners Disciplinary Tribunal. The charge alleged disgraceful conduct in the following respects:
1. He failed to obtain [Mrs R]’s informed consent to forcibly administer psychotropic medications and antidepressants to her when no committal order was in existence at the time and/or;
2. He failed to inform [hospital] by admission note when [Mrs R] 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 [Mrs R]’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 [Mrs R] psychoactive drugs, anti‑depressants and tranquillisers from drug company samples without the drugs being formally prescribed and documented.
7. He treated [Mrs R] 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.
High Court proceedings
Dr R issued proceedings in the High Court seeking judicial review of the Committee's decision to lay a charge in those terms. His case was that the Committee’s inquiry into matters relating to his treatment of the daughter (particulars 4 and part of 7) and self prescribing of sleeping tablets (particular 5) lay outside the scope of Mrs R’s original complaint and was therefore invalid. He sought an order setting aside the charge so far as it related to those matters. The Committee’s response was that for this purpose the original complaint should be broadly interpreted, that it could be supplemented by further complaints arising out of the Committee’s investigations if flowing naturally from the original complaint, and that the particulars in question did not go beyond those principles.
Durie J accepted the Committee’s contention that a liberal approach to the interpretation of the original complaint was warranted. He did not agree with the argument advanced on Dr R’s behalf that for present purposes the complaint was “limited to the four corners of the written documents of complaint”. For the purposes of the statute it was the complaint as eventually comprehended by the Committee that mattered. But even on that broader approach, the complaint did not extend to the allegations relating to self-prescribing and the daughter. As he put it:
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 of a throw‑away line.
Durie J held that the Act limited the Committee’s jurisdiction to matters raised in the complaint. Otherwise there would be a denial of Dr R’s right to choose whether to exercise his right of silence or make a statement. The Judge accordingly found for Dr R in relation to particulars 4, 5 and part of 7. He ordered the Medical Practitioners Disciplinary Tribunal not to hear those matters.
The Medical Practitioners Act 1995
The principal purpose of the Act is “to protect the health and safety of the members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practise medicine” (s3(1)). The principal purpose is promoted by various measures which relevantly include provisions for reviewing competence, notifying mental or physical conditions affecting fitness, and disciplining medical practitioners: s3(2)(c), (d) and (e).
The disciplining of medical practitioners is addressed in Part VIII of the Act. In every case the process commences with a complaint made under s83 which materially provides:
(1)Any person who wishes to make a complaint against a medical practitioner may give notice of the complaint to the Health and Disability Commissioner or the Registrar.
(2)A complaint may be made either orally or in writing.
Unless the complaint is determined by the Health and Disability Commissioner, or the Commissioner and the President of the New Zealand Medical Council otherwise decide, the President of the Council refers the complaint to a complaints assessment committee (see ss 84-87). From time to time the President appoints in relation to a particular case or class of cases two medical practitioners and one lay person to be a complaints assessment committee (s88).
The referral to a complaints assessment committee is made under s87. The effect of s87 is that once a complaint has been notified to the President by the Registrar of the Medical Council or by the Health and Disability Commissioner:
the president shall, as soon as reasonably practicable after receiving the notification, refer the complaint to a complaints assessment committee, unless the president and the Health and Disability Commissioner agree that the complaint should not be so referred.
The Committee’s powers and procedure are then specified in ss89 to 92 which provide:
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.
If the Committee decides that the complaint should be considered by the Tribunal the Committee frames an appropriate charge and lays it before the Tribunal (s93(1)(b)). It is the Tribunal which later gives notice of the charge to the practitioner pursuant to s103(1) which provides:
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.
Before turning to the particular issues raised by this case two background points about the Committee may be noted. First, the Committee’s function in relation to disciplinary action is not to determine guilt. It determines whether the complaint should be considered by the Tribunal (s92(1)(d)), frames any appropriate charge (s93(1)(b)), and prosecutes any such charge (s102(4)(b)). Secondly, the Committee is given a wide power to regulate its own procedure. The practitioner must be given particulars of the complaint and there must be an opportunity for requests to change the membership of the Committee (ss 90 and 91). The Committee must give the practitioner and the complainant a reasonable opportunity to make a written explanation or statement and may give the practitioner and complainant the opportunity to appear for that purpose (s92(3)). But subject to anything specific in the legislation, the Committee can regulate its procedure in such manner as it thinks fit (s89(1)).
Can the Committee lay charges outside the original complaint?
Pursuant to s92(1)(d) the Committee determines whether the complaint should be considered by the Tribunal. If so, it must “frame an appropriate charge and lay it before the Tribunal” (s93(1)(b)(i)). It was not argued that the charge could extend to matters outside the complaint which had been the subject of a determination under s92(1)(d). The charge referred to in s93(1)(b) is merely a conversion of the complaint into a series of particularised allegations appropriate for disciplinary determination.
Mrs Davenport’s argument was directed to the scope of the complaint which could be the subject of a determination under s92(1)(d). She submitted that the complaint as it appeared by the end of the Committee’s inquiries should not be unduly constrained by the form of the complaint as originally lodged. The emphasis lay on natural justice. So long as the practitioner had been given adequate notice of any fresh allegations, and the fresh allegations had some reasonable connection with the subject-matter of the original complaint, they could be referred on to the Tribunal under s92(1)(d). She submitted that the overall statutory objective of protecting the public required that a liberal interpretation be afforded to “the complaint”. Otherwise the authorities would be unable to protect the public by taking proper action over those additional allegations that might emerge during the Committee’s investigations.
The scheme of the Act is to make the original complaint the vehicle for all that follows before the Committee. The complaint initiates the process (s83(1)), is addressed by the Commissioner (ss 84 and 86), is referred to the Committee (s87), is the subject of particulars to the practitioner (s90), is the subject-matter of any explanation or statement (s92(3)), and is the subject-matter that can be sent forward for consideration by the Tribunal (s92(1)(d)). Prima facie the “complaint” referred to in all these contexts is the one that had been made at the outset. Pursuant to s2(1) “complaint” means a complaint made under s83(1) of the Act unless the context otherwise requires. We can see nothing in the context to justify a departure from that definition. There is a seemingly unbroken sequence of references to the same complaint from its inception under s83(1) to its potential reference to the Tribunal under s92(1)(d), a point reinforced by the definite article “the” when referring to the complaint in s92(1)(d).
Lack of opportunity to revisit procedural decisions made earlier in the sequence may have been the reason for the legislative emphasis upon the original complaint. Once a complaint is made the authorities, the practitioner and the complainant are called upon to make a series of procedural decisions - whether the Health and Disability Commissioner should determine the complaint (ss 84 and 86), whether the complaint should be referred to a Committee (s87), who should be members of that Committee (ss 87 and 88), whether requests should be made to change the membership of the Committee (s91), whether and in what form explanations and statements should be made to the Committee (s92(3)(a)) and whether and how to take advantage of any opportunity to appear before the Committee (s92(3)(b)).
Those called upon to make those procedural decisions will have had only the original complaint to work with. If independent allegations could be added at the end of the sequence it would not be practicable to revisit the decisions already made. Whether those considerations are necessarily unanswerable is another matter, but they may help to explain the legislative preoccupation with the original complaint. Certainly there is nothing in the scheme of the legislation as a whole to rebut the s2 presumption that from beginning to end the word “complaint” means the original complaint.
Mrs Davenport pointed out that whatever limitations there may have been in the original complaint from Mrs R, the Committee’s letter to Dr R of 24 February 2001 gave him ample warning that the Committee intended to make a determination in respect of Dr R’s treatment of his daughter. We agree. In traditional natural justice terms the Committee’s letter gave him a reasonable opportunity to be heard on that subject. The fact remains, however, that the statute makes no provision for the late introduction of additional complaints, presumably because of the procedural decisions already made on the strength of the original one.
We therefore accept Mr Knowsley’s submission that the jurisdiction of the Committee is delineated by the particular complaint referred to it under s87. The complaint is not an omnibus onto which further allegations can climb as it proceeds along its path. Everything turns on the scope of the original complaint.
Determining the scope of the original complaint
The Act contains a number of indications that the original complaint is to be broadly interpreted. A complaint may be made orally or in writing (s83(2) and by any person (s83(3)). The majority will be made by persons who are legally and medically unqualified. A complaint is not to be confused with the particulars that might properly be taken from it (s90(a)) nor with the charge that might properly be based upon it (s93(b)). The Committee’s broad procedural powers (s89(1)), its consideration of written explanations (s92(3)(a)), and the opportunity for hearings in person (s92(3)(b)), all contemplate considerable scope for clarifying the matters alluded to in the original complaint. A broad approach to the scope of a complaint also accords with the overriding statutory purpose of protecting the health and safety of members of the public (s3(1)).
Against those considerations is the need to ensure that the various procedural decisions referred to earlier in the sequence are made with an adequate grasp of the scope of the complaint. The Commissioner, President, and medical practitioner, must plot their course in the light of the original complaint as it is reasonably understood. Of those decisions, the most important for present purposes will be those taken by the medical practitioner in conducting his or her defence. Sections 90(a) and 92(3) are a statutory expression of conventional natural justice requirements. The practitioner must decide whether and in what form to provide statements and explanations. The decision can only be based upon the practitioner’s understanding of the allegations he or she faces.
We think that in cases like the present one the balance between those competing considerations is to be found by asking what the reasonable reader or listener would understand to be the subject-matter of the complaint when considered as a whole and in the light of its lay authorship. We agree with Durie J that the complaint is not to be interpreted in any literal or legalistic way. It is the substance that matters. Reasonable inferences are not to be frustrated by limitations in expression. The document is to be read as a whole without preoccupation with particular words.
In interpreting the complaint the emphasis is to be placed on its subject‑matter rather than the attitudes and recriminations it may reveal. The complainant’s unhappiness with the practitioner will usually be obvious. The real quest is for the particular incident or incidents about which the complaint is made. The preoccupation is with matters of date, place, time, activity and patient, since these are the matters in respect of which the practitioner needs to prepare.
A similar approach was taken by this Court in Duncan v Medical Practitioners Disciplinary Committee [1996] 1 NZLR 513 with respect to the Medical Practitioners Act 1968. Under the legislation then governing disciplinary proceedings against medical practitioners there was similarly a preliminary inquiry into a complaint by a committee which had the power to determine that the complaint should go forward for the attention of a disciplinary committee. Delivering the majority judgment, Cooke P said of that legislation (p 545):
The most important words are those in sub (3) “the complaint should be inquired into by the Council in relation to the subject-matter of the complaint” and “shall frame an appropriate charge”. It is evident that the legislature has contemplated that complaints will not be in any particular form of words, that it is their subject-matter which is significant rather than how they are expressed, and that if found by the Committee to warrant inquiry by the Council they are to be translated by the Committee into appropriate charges.
Sections 83 to 92 of the present Act make no express reference to the subject-matter of the complaint but we think that broadly the same approach was intended.
Scope of the complaint in this case
In the present case it is common ground that Mrs R’s letter of 4 March 2000 embraced the allegations that Dr R improperly prescribed drugs to her and instigated her committal to hospital without her consent (particulars 1, 2, 3, 6 and part 7 of the charge later laid).
The Judge held that the letter did not include any allegation that Dr R was inappropriately prescribing drugs for his daughter (particular 4). We agree. That allegation did not surface until the discussion between the Committee and Mrs R on 2 February 2001. It involved a different patient entirely. We do not think that there was anything in Mrs R’s letter of 4 March 2000 to warn Dr R that he was at risk in that respect. It fell outside the complaint and therefore the Committee’s jurisdiction.
The Judge also concluded that Mrs R’s letter did not embrace the allegation that Dr R “self prescribed Imovane, a sleeping tablet, for a few months without any supervision or monitoring by another practitioner” (particular 5). Bearing in mind the broad and purposive approach to the complaint discussed earlier, we feel bound to take a different view. Mrs R’s opening sentence made it clear that she was complaining about Dr R’s conduct. She next refers to “inappropriate, improper, excessive, indiscriminate and reckless prolonged prescription of dangerous addictive drugs to me.” There immediately follows the allegation that “Dr [R] is also addicted to sleeping tablets.”
We think that a reasonable medical practitioner reading that letter would understand that Dr R’s consumption of sleeping tablets was one of the matters about which Mrs R was complaining. That implied some form of reprehensible conduct in relation to his own sleeping tablets. In our view that was enough to warn Dr R that the circumstances in which he came to consume sleeping tablets would be inquired into. In addition the preceding sentence alleged improper prescription of addictive drugs for Mrs R. It was a short step to the inference that he was prescribing for himself as well. The overall impression left by the letter was sufficient to justify the self-prescribing alleged in particular 5 of the charge.
We conclude that Mrs R’s complaint embraced all of the matters later included in the charge except those relating to their daughter.
Opportunity for further complaint
Nothing we have said imposes any constraint upon the laying of a second or subsequent complaint in the light of matters which have emerged in the course of investigating the first one. Nor would there seem to be any difficulty in having more than one charge, arising from more than one complaint, heard and determined in a single hearing before the Tribunal. What does seem clear, however, is that any second complaint must be made to the Commissioner or Registrar under s83(1) and then pass through all of the ensuing procedures required by ss 83 to 92 involving the Commissioner, Presidential referral to a Committee, notification of particulars of complaint, notification of membership of Committee, opportunity for written statement or explanation, and opportunity to appear before a Committee if permitted. Only then could a Committee determine that that complaint too should be heard by the Tribunal under s92(1)(d).
Whether a second complaint should be placed before the same Committee would seem to turn largely upon the potential for an appearance of bias. The value judgment that that entails must be closely tailored to the facts of each individual case but it seems unlikely that the possibility of bias will often be a concern. For a Committee to identify fresh allegations does not per se imply that the Committee has formed any particular view as to their merit. Convenience and efficiency suggest that in most cases the President would appoint the original Committee to consider the second complaint. The response lies largely in the hands of the practitioner. On receiving notice as to the membership of the Committee pursuant to s90 the practitioner could request a change of membership pursuant to s91. No doubt the President would normally accede to such a request in those circumstances. But in most cases the practitioner would probably prefer the expedition offered by the original Committee. It is the Tribunal that determines guilt.
Mr Knowsley submitted that in cases where the source of the fresh allegation was the practitioner’s answer to questions from the Committee there should be a permanent prohibition against proceeding further in respect of that allegation. Explanations, statements and appearances under s92(3) are optional. The practitioner will have exercised his or her option on the assumption that he or she is at risk only in respect of the original complaint. Mr Knowsley submitted that it would be contrary to the protection to the practitioner envisaged by the notice requirements of s90 and the options extended under s92(3) to put the practitioner in jeopardy over the answer to questions that lay outside the jurisdiction of the Committee involved. The problem could not be cured by starting again before the same or another Committee.
We do not think that the Committee’s power to ask questions is constrained by the scope of the original complaint. In addition to determining whether the original complaint should be the subject of conciliation or referral to the Tribunal (s92(1)(c) and (d)) the Committee must determine whether the Council should review the practitioner’s competence and/or ability to practise medicine (s92(1)(a) and (b)). That responsibility could not be adequately discharged if inquiries were limited to the particular matters raised in the complaint. So it will be entirely proper for the Committee to inquire into matters which arise in the course of its inquiry, although outside the scope of the original complaint, if relevant to competence and/or ability to practise medicine. The Committee should usually advise the practitioner where it sees that such matters will arise. In this case, where the practitioner was represented by counsel, we consider that this requirement was adequately met in relation to the issue of prescribing for the daughter.
Nor can we find anything in the Act to suggest that the result of such inquiry should be unavailable for use in support of a subsequent complaint. A practitioner electing to appear before the Committee does so with knowledge of the Committee’s wide powers of inquiry implicit in s92(1)(a) and (b). There is no question of deception here. And there could be no denial of the natural justice requirements of ss 90 (a) and 92(3) if evidence obtained without notice in the first proceedings provides the basis for a fresh complaint with proper notice in new proceedings. A more restrictive view would, to no apparent purpose, frustrate the fundamental object of protecting the public.
Conclusions
We agree with the Judge’s conclusion that the Committee had no jurisdiction to deal with the allegations in respect of Dr R’s treatment of his daughter. It follows that the inclusion of particular 4, and the words “and/or his children” in particular 7, was invalid. To that extent the Judge’s declarations of invalidity and his order quashing particulars will stand.
The appeal is allowed insofar as the Judge made declarations of invalidity in relation to, and quashed, particular 5. For the removal of doubt, the appeal is also allowed in relation to the order that “the Medical Practitioners Disciplinary Tribunal not hear particulars 4, 5 and that part of 7 as refers to the children.” There is no impediment to the Tribunal’s hearing of particular 5 immediately. There remains also the possibility that as the result of a further complaint, and completion of subsequent procedures arising from that complaint, the matters presently addressed in particular 4, and that part of particular 7 relating to children, could ultimately come before the Tribunal.
The appellant has had only modest success in this Court. The first respondent is ordered to pay the appellant $2,000 towards its costs. The second respondent abided the decision of the Court and will receive no costs.
Solicitors
T Turfrey, Medical Council of New Zealand, Wellington for Appellant
Rainey Collins Wright & Co., Wellington for First Respondent
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