The Director of Proceedings v Parry HC Auckland Ap61-Sw01

[2001] NZHC 969

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY AP61-SW01

IN THE MATTER of an appeal under section 121 of the Medical Practitioners Act 1995

AND

IN THE MATTER of Part XI of the High Court Rules

AND

IN THE MATTER of Part IV of the Summary Proceedings Act 1957

BETWEEN THE DIRECTOR OF PROCEEDINGS
Appellant

AND GRAHAM KEITH PARRY
First Respondent

AND MEDICAL PRACTITIONERRS DISCIPLINARY TRIBUNAL
Second Respondent

Hearing: 1 October 2001

Counsel: M F McClelland for the Appellant
C J Hodson QC and A H Waalkens for the First Respondent
B A Corkill (abiding the decision of the Court) for the Second Respondent

Judgment: 15 October 2001

RESERVED JUDGMENT OF PATERSON J

Solicitors:
KPMG Legal, Wellington
N Fisher, Auckland
D F C Fuller, Box 491, Wellington

[1] The appellant (the Director) charged Dr Parry pursuant to s 102 of the Medical Practitioners Act 1995 (the Act) of erring in his management and treatment of his patient Colleen Poutsma between 22 August 1997 and 9 February 1998. The second respondent (the Tribunal) found Dr Parry guilty of disgraceful conduct and, inter alia, ordered the removal of his name from the Register of Medical Practitioners (the Register). It also fined him $15,000.

[2] Dr Parry appealed to the District Court against certain findings of the Tribunal. In a reserved decision given on 30 May 2001, District Court Judge Hubble found for Dr Parry on some points and reduced the fine imposed on him. He made an order that Dr Parry be permitted to practice under supervision and competency review in the areas of obstetrics and ultrasound only. The Tribunal appealed to this Court against the Judge’s decision reducing the fine and reinstating Dr Parry to the Register, albeit on a restricted basis. Dr Parry cross-appealed against other findings of the Judge. Under s 121 of the Act the parties have the right to appeal to this Court by way of case stated for the opinion of this Court on a question of law only. In accordance with s 121 the Judge stated a case incorporating both the Director’s and Dr Parry’s points on appeal.

Background

[3] Dr Parry was in August 1997 a registered medical practitioner specialising in gynaecology and obstetrics. A general practitioner referred Mrs Poutsma to him after she had experienced some mid-cycle, post-coital genital tract bleeding. She had previously been referred to Dr Parry in 1991 for similar symptoms.

[4] The general practitioner had taken a cervical smear from Mrs Poutsma before referring her to Dr Parry. Dr Parry, who had the smear test results at that time, examined her and conducted a trans-abdominal ultrasound scan. He did not conduct any other examination.

[5] Dr Parry reported to Mrs Poutsma’s general practitioner stating that Mrs Poutsma’s uterus was enlarged, but not significantly so, and he wished to do nothing further unless “the bleeding becomes a regular part of her life” or she had an abnormal smear test.

[6] Mrs Poutsma’s severe bleeding continued and she was again referred to Dr Parry who examined her on 31 December 1997. He then performed a vaginal examination, a smear test and a punch biopsy. Subsequently, he reported that Mrs Poutsma’s cervix looked different from the way it had in his August examination and “considerably abnormal.” The result of the punch biopsy test was received by Dr Parry on 8 January 1998 and he reported to Mrs Poutsma’s general practitioner the following day. The results showed that Mrs Poutsma was suffering from invasive squamous carcinoma of the cervix.

[7] On 19 January 1998 Dr Parry again examined Mrs Poutsma and performed a laser cone biopsy. The results of this test revealed invasive moderately differentiated squamous cell carcinoma Stage 1B2. On 9 February 1998, Dr Parry referred Mrs Poutsma to the oncology unit at the National Women’s Hospital (NWH). Mrs Poutsma died of invasive carcinoma in April 2001.

[8] Mrs Poutsma complained to the Health and Disability Commissioner. The Director is the designated “Director of Proceedings” under s 15 of the Health and Disability Commission Act 1994. In accordance with her statutory powers, the then Director laid a charge against Dr Parry in respect of his treatment of Mrs Poutsma.

[9] The charge against Dr Parry was that “he erred in his management and treatment of his patient, Colleen Poutsma of Paihia between 22 August 1997 and 9 February 1998.” In an amended charge dated 31 August 2000, four particulars were given in respect of the charge, namely:

1 He failed to carry out an adequate clinical assessment and examination of his patient on 22 August 1997; and/or

2 Performed an unnecessary and/or clinically unjustified cone biopsy on his patient on 19 January 1998; and/or

3 Despite receiving a pathology report on or about 9 January 1998 confirming the diagnosis of invasive carcinoma he did not refer his patient to the Oncology Unit at NWH, Auckland for further treatment until 9 February 1998

4 The conduct alleged amounts to disgraceful conduct in a professional respect and paragraphs 1 to 3 inclusive either separately or cumulatively are particulars of that disgraceful conduct in a professional respect.

The Tribunal Decision

[10] The Tribunal is the Medical Practitioners Disciplinary Tribunal constituted under s 96 of the Act to hear complaints against medical practitioners. It heard the complaint against Dr Parry during September and October 2000.

[11] In a decision dated 31 October 2000, the Tribunal made the following findings:

(a) Dr Parry failed to carry out an adequate clinical assessment and examination of his patient on 22 August 1997 and that failure amounted to disgraceful conduct. This was a unanimous finding.

(b) Dr Parry performed an unnecessary and/or clinically unjustified cone biopsy on his patient on 19 January 1998 and this amounted to disgraceful conduct. This was a majority finding as one member of the Tribunal, who was an obstetrician and gynaecologist (the minority member) was of the view that this was not disgraceful conduct.

(c) Dr Parry did not refer the patient to the Oncology Unit at NWH for further treatment until 9 February 1998 despite receiving a pathology report on or about 9 January 1998 confirming invasive carcinoma and this delay in referral amounted to professional misconduct. This was a unanimous finding.

(d) In addition to the three separate findings, the cumulative effect of the two findings of disgraceful conduct and the one finding of professional misconduct amounted cumulatively to disgraceful conduct. This was a unanimous decision.

[12] The Tribunal in a separate decision on 2 March 2001 (the penalty decision) imposed penalties on Dr Parry by ordering:

(a) Dr Parry be removed from the Register of Medical Practitioners. This was a majority decision as the minority member of the Tribunal was of the view that Dr Parry should not practice in the area of gynaecology but ought to be permitted to practice in his sub-specialist practice of ultrasound and his obstetric practice subject to appropriate conditions;

(b) He was censured;

(c) He was fined $15,000;

(d) He was required to pay 40% of the costs of the investigation and hearing of the charge;

(e) If the Tribunal’s order was stayed, Dr Parry’s registration was suspended until the earlier of the determination of the Disciplinary Proceedings (including appeals) or the expiry of 12 months; and

(f) The Tribunal’s orders were to be published in the New Zealand Medical Journal.

District Court Appeal

[13] Dr Parry exercised his right to appeal against the Tribunal’s decision (s 116 of the Act). There were eight grounds of appeal and those relevant to the present appeal were:

(a) The Tribunal erred in finding that he had failed to conduct an adequate examination of Mrs Poutsma on 22 August 1997 and that his conduct on that day amounted to disgraceful conduct;

(b) The Tribunal erred in finding that the particulars alleged in the charge amounted to disgraceful conduct;

(c) The Tribunal was biased against him;

(d) The penalty and award of costs against him was manifestly excessive and unreasonable.

[14] There were other grounds of appeal and Dr Parry succeeded in having the finding referred to in paragraph 11(b) above, namely, that the performance of an unnecessary and/or clinically unjustified cone biopsy amounted to disgraceful conduct, reduced to a finding of professional misconduct. That finding is not challenged in this appeal.

[15] The Judge, after considering the meaning of “disgraceful conduct” upheld the finding that the manner in which Dr Parry examined Mrs Poutsma on 22 August 1997 amounted to disgraceful conduct. He also upheld the finding that the three particulars when considered cumulatively did amount to disgraceful conduct. He found that there was no “real danger” of bias being permitted to affect the Tribunal’s decision.

[16] The Judge did overturn the penalties imposed by the Tribunal and made the following orders:

(a) Dr Parry be struck off the Register of Gynaecologists;

(b) The fine be reduced to $5000;

(c) Dr Parry pay 40% of the costs of investigating and hearing the charges ordered by the Tribunal;

(d) Counsel make submissions as to whether s 8 of the Criminal Justice Act 1985 permitted him to order that part or all of the fine be paid to Mrs Poutsma and whether such orders would be appropriate;

(e) Dr Parry be permitted to practice in the field of obstetrics and ultrasound only under supervision and competence review and that counsel for the parties confer and agree on appropriate conditions to facilitate this;

(f) These orders be published in the New Zealand Medical Journal once the parameters of Dr Parry’s practice are settled.

[17] There were discussions between counsel about the form of the order to be sealed. The final form was settled by the Judge after telephone conferences. No portion of the fine was made payable to Mrs Poutsma’s estate.

Case Stated

[18] In the case stated, the Judge has asked whether he made an error of law in any of the following:

(a) Finding that there was no bias on the part of the Tribunal;

(b) Upholding the Tribunal’s decision of disgraceful conduct;

(c) Finding relevant or considering s 84 of the Summary Proceedings Act 1957 and s 27 of the Criminal Justice Act 1985;

(d) Finding that the Tribunal had a duty to inquire into the means and responsibilities of Dr Parry before imposing a fine;

(e) Ordering that Dr Parry’s name be restored to the Register of Medical Practitioners for the purposes of practising in Obstetrics and Ultrasound only;

(f) Ordering that the conditions under which Dr Parry should be permitted to practice should be agreed between counsel rather than referred back to the Tribunal under s 119 of the Act.

Bias

[19] Before considering the alleged error of law made by the Judge, it is relevant to consider the law relating to bias. “Bias” may be generally defined as a pre-disposition to decide an issue in a certain way which does not leave the decider’s mind properly open to persuasion. The decider is therefore not able to make an impartial decision in the circumstances of the case. Because it is seldom possible to establish actual bias, the law recognises apparent bias. This is recognised in the maxim “Justice is not only to be done but to be seen to be done.” Most cases which come before the Courts consider apparent bias and not actual bias. One of the submissions made by Mr Hodson QC was that this is a case where bias can be inferred.

[20] The test to determine apparent bias has been considered in recent years by the Court of Appeal in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 and Riverside Casino Ltd v Moxon [2001] 2 NZLR 78. Apart from some minor variations in wording, which in my view are not relevant in this case, the principles in the English decisions of R v Gough [1993] AC 646 (HL) and Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 (CA) have been adopted with approval in this country. The test adopted by the Court of Appeal in Auckland Casino was:

“If a reasonable person knowing all the material facts would not consider that there was a real danger of bias, it would seem strained to say that nevertheless he or she would reasonably suspect bias. One must query whether the law should countenance such refinements. In the result we accept the real danger test as satisfactory.”

It is for the Court after considering the actual circumstances to stand in the shoes of the reasonable man and determine whether there is a reasonable suspicion of bias.

[21] The United Kingdom Court of Appeal in Locabail, while cautioning that it is dangerous and futile to attempt to define or list the factors which may or may not give rise to real danger of bias then set out a reasonably comprehensive list of those factors which would not normally lead to such an apprehension. Included in the list were “extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers) . . .”

[22] While Mr Hodson relies upon two particular factual matters, it is necessary to consider the history of the complaint and the proceedings before the Tribunal. An abridged chronology is:

7 April 1998 Mrs Poutsma complained to Health and Disability Commissioner

7 April 1998 to 12 July 1998 Complaint investigated, referred to Director and to Medical Council with a request for a competence review

12 July 2000 Charges presented to Tribunal alleging “professional misconduct.”

28 July 2000 Medical Council directed Dr Parry to undertake a very strict competence programme.

June-July 2000 Competence review carried out and was very critical of Dr Parry but accepted that his shortcomings were remedial.

11 August 2000 Director requested Tribunal to suspend Dr Parry who at that time was undergoing an “extremely rigorous” competence programme. An independent report from Dr Cook was before the Tribunal and it stated that the performance of a cone biopsy “is incomprehensible and suggests a lack of understanding of cervical cancer management principles” and “I consider that fundamental errors of judgment were made in this case, and that the complainant has reasonable grounds for complaint.”

21 August 2000 Tribunal issued a decision refusing to suspend Dr Parry and suppressing his name. It noted that normally concerns, such as those expressed by Dr Cook, would lead to suspension. However, it was influenced by the competence programme Dr Parry was undertaking.

31 August 2000 Charge amended to one of “disgraceful conduct.”

3 September 2000 Mr Poutsma was interviewed in a highly emotive 20/20 TV programme.

7 September 2000 The Tribunal began its hearing at Mrs Poutsma’s bedside at the Mercy Hospital. The media comment had been intense and Mr Hodson at that hearing sought an assurance from the Tribunal and its members that they would not be swayed by it. The Chairperson of the Tribunal gave the necessary assurance.

8 September 2000 Of its own motion and without notice, the Tribunal suspended Dr Parry pending the outcome of the disciplinary hearing.

9 September 2000 The New Zealand Herald published an interview with the Chairperson of the Tribunal.

27 September 2000 Dr Parry applied for the removal of the suspension and at the hearing the issues, including the publicity, were fully aired.

3 October 2000 The Tribunal issued its decision refusing to remove the suspension.

9 October 2000 Tribunal’s hearing which had been adjourned on 7 September, recommenced at Paihia. At the commencement of the resumed hearing, Mr Hodson made an application, on behalf of Dr Parry requesting the Tribunal to disqualify itself from any further conduct of the proceeding. The application was made without notice and the ground for it, as stated in the Tribunal’s decision refusing to disqualify itself, was that in making the order suspending Dr Parry from practising pending the determination of the charge without notice to him and on the grounds set out in the order dated 21 August 2000, the Tribunal acted in defiance of Dr Parry’s rights. Further, it was submitted that despite assurances to the contrary, the Tribunal was contaminated by the large amount of television and newspaper publicity about the case.

[23] The Tribunal retired to consider the request but refused to disqualify itself. The Tribunal noted it had made every effort to avoid as much of the publicity about the case as it could reasonably do so and the members had not watched the TV3 20/20 programme. The publicity about other complaints which might be made against Dr Parry was not the primary reason for the Tribunal’s decision to suspend him. That decision had been arrived at after having heard Mrs Poutsma’s evidence and Dr Parry’s admissions as to the correctness of the factual situation giving rise to the charge. This led the Tribunal to the conclusion that there was an urgent need to act. In its view, the Act requires that if matters came to light which raised questions as to any risk to the health and safety of members of the public, then the Tribunal should act promptly. It was also aware that Dr Parry could apply to revoke the suspension.

[24] Dr Parry’s allegation of either actual or apparent bias was based on two primary facts, namely:

(a) The contents of the New Zealand Herald article of 9 September 2000 against the background of the Chairperson’s assurance on 7 September that the Tribunal would not be swayed by the media publicity; and

(b) The suspension of Dr Parry without notice on 8 September 2000, particularly as the Tribunal had previously, after considering the position, refused to suspend him.

[25] The alleged error of the District Court was said to be “not to first consider, in the light of the undisputed facts, whether bias could actually be excluded. Had it adopted this approach it would have been confronted with the appearances which it is required to take into account.” Mr Hodson relied upon the following extract from para 31 of the Riverside Casino judgment:

“[The authorities] provide that where the possibility of bias can be actually excluded appearances will be irrelevant. However, where actual bias cannot be excluded, the danger or possibility of bias can still be held to arise from appearances.”

[26] In his decision, the Judge noted a submission from Mr Hodson to the effect that no matter how “disinterested the decision maker is in fact, the circumstances should not give rise to the appearance or risk of bias.” The Judge concluded that there could be no criticism of the Tribunal for suspending Dr Parry on its own motion and without notice. He found there were substantial and valid reasons for the Tribunal changing its mind on the issue of suspension within a matter of 18 days. In respect of the high impact media coverage, the Judge was satisfied that the issue was confronted with and dealt with in a proper manner by the Tribunal, both in the decision relating to suspension delivered on 3 October 2000 and in the substantive decision delivered on 31 October 2000. He therefore concluded that there was not any real danger of bias being permitted to affect the ultimate outcome.

[27] Against this background I have difficulty in understanding the alleged error of law. The case appears to have been put to the Judge on the basis of apparent bias rather than actual bias. The Judge in his approach to bias did not expressly exclude actual bias. However, by considering whether there was apparent bias, he took into account the necessary appearances and after having considered them against the appropriate test, rejected that there was apparent bias. There was no error of law in doing so.

[28] A point made in submissions was that bias could be inferred so appearances take a secondary role. If bias is to be inferred, there would be a finding of actual bias. By implication, there was no such finding in this case and I am bound to say that on the evidence as presented, such a finding does not appear to have been available to the Judge. The Judge in his approach did not preclude bias existing and considered the appearances, namely the two matters upon which Mr Hodson relied. He then held that there was no apparent bias. In my view, this ground of appeal cannot succeed as there was no error of law.

[29] An inquiry into the Judge’s factual findings is not within the scope of this appeal. However, I note that if there had been an available appeal from factual findings, such an appeal could not, in my view, have succeeded. The two points upon which Dr Parry relied would not have led me to have reasonably suspected bias. While it may have been preferable to have given Dr Parry notice of the proposed suspension, this was not legally necessary. The evidence suggested that the Tribunal was motivated by a need to ensure public protection and cannot and should not be criticised for this. Between its decision not to suspend and its decision to suspend made without notice, it had heard Mrs Poutsma’s evidence, and had heard certain acknowledgements and admissions made by Dr Parry. Further, it had before it the evidence given by Dr Cook at the suspension hearing. The Tribunal noted in its decision:

“The Tribunal considered Mrs Poutsma’s evidence, and the admissions made on behalf of Dr Parry to be quite extraordinary, particularly as they arose in the context of his professional practice as a specialist obstetrician and gynaecologist. The evidence, and the admissions of the truth of the factual basis of Mrs Poutsma’s complaint, certainly raised serious issues regarding the safety of Dr Parry’s clinical practice, and on that basis alone, the Tribunal considered that the test contained in section 104(1) was satisfied.”

Its decision was justified.

[30] Nor would there be a reasonable suspicion from the New Zealand Herald article. The portion relied upon is at the best ambiguous and appears to be more the view of the journalist than the chairperson. The wisdom of a person chairing a disciplinary tribunal and talking to the media about a case in which the person is about to preside, may be open to question and could be fraught with difficulties. However, in this case, the comments would not, in my view, have raised a reasonable suspicion of bias.

Disgraceful Conduct

[31] It was submitted on behalf of Dr Parry that the Judge applied the wrong legal test in determining what amounts to disgraceful conduct under the provisions of the Act. The Judge reviewed the law in this respect and expressed the test in the following terms:

“ . . . it must be accepted that the Tribunal has power to strike off a practitioner not only for moral turpitude, fraud or dishonesty, but also in the interests of the safety of the public those who are grossly negligent, genially incompetent or obstinately indifferent to the consequences of their acts.”

Authorities relied upon were the Australian case of Pillai v Messiter (No. 2) [1989] 16 NSWLR 197, a decision of a full High Court in Brake v Preliminary Proceedings Committee of the Medical Council of New Zealand [1997] 1 NZLR 71, and the recent Privy Council decision of McCandless v General Medical Council [1996] 1 WLR 167.

[32] Mr Hodson submitted this was not the correct test. His submission was “the correct test for disgraceful conduct is therefore deliberate wrongdoing of a sufficient serious nature or such indifference or abuse or recklessness as to amount to the same thing.” It was accepted that disgraceful conduct could occur in a clinical setting.

[33] At the heart of Mr Hodson’s submissions was the suggestion that the law and statutory structure relating to medical disciplinary proceedings has significantly changed since the passing of the Act in 1995. Therefore, the value of precedents and mindsets brought to disciplinary proceedings are, or ought to be, different from those applied under the Medical Practitioners Act 1968.

[34] Under the Medical Practitioners Act 1968, complaints against medical practitioners were made to the Medical Council. The Penal Cases Committee investigated complaints and determined whether charges should be framed. The more serious charges were considered by the Medical Council while less serious charges were considered by the Disciplinary Committee constituted in accordance with that Act. It was the Medical Council which had the power to judge a practitioner to have been guilty of disgraceful conduct in a professional respect, and on such a finding to strike the medical practitioner from the Register. Less serious cases, including cases of professional misconduct, were normally determined by the Disciplinary Committee. It was the Disciplinary Committee which had power to consider charges of professional misconduct or conduct unbecoming a practitioner. There were thus three categories of offences under the previous Act, namely, disgraceful conduct in a professional respect, professional misconduct, and conduct unbecoming a practitioner.

[35] Section 3 of the Act states that the principal purpose “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.” Section 3(2) states:

“(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.

[36] The provisions in s 3(2)(c) provide for reviews of the competence of medical practitioners to practise medicine and s 3(2)(f) provides certain protections for medical practitioners who take part in approved quality assurance activities. These provisions place greater emphasis on prevention by reviewing competence and providing protection for those medical practitioners taking part in approved quality assurance activities. Mr Hodson’s submission, in effect, was that this new emphasis on competence and quality altered the meaning of the term “disgraceful conduct” as it appears in s 109(1) of the Act.

[37] Section 109 of the Act sets out the grounds on which a medical practitioner may be disciplined by the Tribunal. There are several grounds including conviction of any offence against certain Acts, conviction by any Court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of three years or longer, practising medicine outside the extent permitted and breaching an order of the Tribunal made under s 110 of the Act. However, for the purposes of the present case, the three categories of relevant misconduct as stated in s 109(1) of the Act are:

(a) Disgraceful conduct in a professional respect; or

(b) Professional misconduct; or

(c) Conduct unbecoming a medical practitioner, and the conduct reflects adversely on the practitioner’s fitness to practise medicine (emphasis added)

[38] When moving the second reading of the Medical Practitioners Bill the then Minister of Health, the Hon J Shipley, said at p 10510 of Hansard (550 New Zealand Parliamentary Debates 7 December 1995):

“The purpose of the Bill is to protect the health and safety of the public by providing for mechanisms to ensure that medical practitioners are competent to practise medicine. This is achieved through registration, assessment of ongoing competence, recertification programmes, and the discipline of doctors.”

The Minister also referred in her speech to “effective and robust quality assurance is an important and positive way of reducing the incidence of avoidable errors in patient care.” As submitted by Mr Hodson the Act places importance on ongoing competence and training programmes to ensure its primary purpose of protecting the health and safety of members of the public. This was part of Parliament’s purpose. It is noted, however, that s 3(2)(e) also provides that the disciplining of medical practitioners is one of the means for achieving the principal purpose.

[39] The Minister of Health on 7 December 1995, referred to the three categories of misconduct when she said at p 10512 of Hansard:

“The existing Act has three categories of misconduct: disgraceful conduct in a professional respect, professional misconduct, and conduct unbecoming to a medical practitioner. Many opinions were put forward, ranging from a single charge of professional misconduct to a proposal for up to seven possible grounds for discipline. The Bill now incorporates the existing categories of misconduct. Conduct unbecoming to a medical practitioner has now been qualified so that it is conduct that reflects adversely on the practitioner’s ability to practise medicine. This charge covers a practitioner’s professional and personal actions.”

[40] The categories of misconduct were obviously fully considered by Parliament in 1995 when considering the Medical Practitioners Bill. Parliament thought fit to make one change only to the three categories of misconduct and that was to the lesser charge of conduct that reflects adversely on the practitioner. The change is emphasised in para 37(c) above.

[41] The Act, in my opinion, did not change the meaning of the term “disgraceful conduct in a professional respect.” It is not a term defined by the Act but by 1995 the Courts had given it a meaning. If Parliament had considered it necessary to alter that meaning, because of the different statutory provisions which were then enacted, it could have easily done so. Further, s 3 of the Act makes it clear that the disciplining of medical practitioners is one of the means by which the Act seeks to attain its principal purpose. Discipline is still an important component in achieving the purpose of the Act. While the Act has more ways of achieving the principal purpose, these additional provisions do not, in my view, have the effect of altering judicial precedents. The wider provisions of assessment of ongoing competence and recertification programmes may have more relevance to penalty than to offences. I see no reason for suggesting that “disgraceful conduct in a professional respect” now has any different meaning from the meaning it had prior to the coming into force of the Act.

[42] The meaning of the term was considered by the full Court in Brake. It noted that the test as stated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 763 was:

“If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency . . .”

At that time, the English equivalent to “disgraceful conduct” was “infamous conduct in a professional respect” and this was what was being referred to in Allinson. The test was an objective one to be judged by the standards of the profession at the relevant time. A submission that the conduct must contain some element of moral turpitude or fraud or dishonesty was rejected in Brake. The full Court stated at p 77:

“Obviously, for conduct to be disgraceful, it must be considered significantly more culpable than professional misconduct, that is, conduct that would reasonably be regarded by a practitioner’s colleagues as constituting unprofessional conduct, or as it was put in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, 200, a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.”

[43] In England there is no longer a disciplinary offence of “infamous conduct in a professional respect.” It has been replaced with a single disciplinary offence, namely, “serious professional misconduct.” The Privy Council in McCandless considered an appeal from a doctor whose name had been erased from the Register of Medical Practitioners consequent upon a finding of guilty of serious professional misconduct. Their Lordships, after noting that the possible penalties had been extended to include suspension and the imposition of conditions upon practice, suggested that the offence was intended to include serious cases of negligence and said:

“Thirdly, the public has higher expectations of doctors and members of other self-governing professions. Their governing bodies are under a corresponding duty to protect the public against the genially incompetent as well as the deliberate wrongdoers.”

[44] There is more than one way of describing the test for “disgraceful conduct in a professional respect.” The full Court in Brake determined that such conduct could include “serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.” Although a single act of mere negligence could never, in my view, constitute disgraceful conduct, I see no reason for departing from the full Court’s view that serious negligence of a non-deliberate nature can in appropriate cases constitute disgraceful conduct. It is not difficult to envisage cases where this could be so, or cases where only one act of serious negligence can amount to disgraceful conduct.

[45] The particular portion of the Judge’s definition complained of is the finding that disgraceful conduct can be found, even if the negligence is neither deliberate nor reckless. Authority does not support Dr Parry on this point. Nor, in view of my previous findings, does the changed structure of the Act assist. The Judge used the term “genially incompetent” and this came from the McCandless decision. He also used “grossly negligent.” In the context of this case, there is no distinguishable difference between “serious” and “gross” negligence. The test which he applied was, in my view, appropriate in the circumstances of this case.

[46] There were other submissions which need to be considered. Mr Hodson submitted that the safety of the public can adequately be protected by a finding of professional misconduct which carries with it the power to suspend a practitioner for up to 12 months and/or order the medical practitioner may practise only in accordance with specified conditions as to employment, or supervision or otherwise. While this may be so in some cases, the fact remains that the Act gives the Tribunal power to make a finding of “disgraceful conduct in a professional respect” and then to strike the doctor from the Register. Such provisions would be largely redundant if the submission is taken to its logical conclusion. Mr Hodson further submitted on this point that because of the powers the Tribunal now has, the power of erasure for disgraceful conduct is therefore almost entirely, if not completely, punitive. It may recognise the complete impossibility of continued safe practice. With respect, I do not accept this submission. It is, in effect, a submission that the nature of the offence should be fashioned by the remedies and penalties available. In other words, what would normally be disgraceful conduct becomes something far less because the Tribunal is able to take steps to reduce or eliminate the risk of a continuation of such conduct. In my view, the Tribunal must judge the conduct as it sees it and then impose the penalty. In imposing the penalty it can obviously take into account the remedial aspects of the Act.

[47] Mr Hodson also sought to strengthen his arguments by referring to the recent Court of Appeal decision in Bottrill v A, (13 June 2001, CA75/00). In my view, the principle established by that case can be distinguished. Exemplary damages are punitive and in applying punitive damages, which require contumelious behaviour, in negligent situations it is not difficult to accept that a defendant must be subjectively aware of the risk to which his or her conduct exposes the plaintiff and act deliberately or reckless taking that risk before such damages are imposed. The task of the Tribunal is to protect the public. A striking from the Register has punitive aspects but if the Tribunal forms the view that there has been disgraceful conduct and it is necessary to remove the medical practitioner from the Register to ensure the protection of the public, it is, in my view, perfectly entitled to do so.

[48] There were submissions made on the factual situation. In particular, it was submitted the only error made by Dr Parry was his failure to carry out a vaginal examination when his patient first saw him on 22 August 1997. Mr McClelland, for the Director, did not accept that this was the only failure but, in my view, it is not necessary for me to determine this issue. It is a factual one. Clearly, under the definition of “disgraceful conduct” as I find it to be, a practitioner can commit an offence by one act of gross negligence if that act, although not deliberate, is an abuse of the privileges which accompany registration as a medical practitioner. This case may be the high mark of disgraceful conduct in that the finding was based on the negligence exhibited towards one patient arising from one consultation. It may be a decision which, in the circumstances, appears somewhat harsh. However, it was made by a specialist panel and the Judge on applying correct principles, upheld the decision of the Tribunal. No error of law was involved and the rightness or wrongness of the factual finding of the Tribunal is not at issue in this appeal. That was resolved at the District Court.

[49] Having determined that the finding of disgraceful conduct is undisturbed, it is unnecessary to determine whether the three findings cumulatively amount to disgraceful conduct. As Mr Hodson rightly conceded, any one finding of disgraceful conduct exposes a medical practitioner to a finding of the same degree overall.

Summary Proceedings Act, Criminal Justice Act and Means

[50] It is convenient to consider together the questions posed in paragraph 18(c) and (d) above. In this respect, it is noted the correct section in the Summary Proceedings Act is s 82.

[51] The Judge found the overall penalty to be manifestly excessive. The financial penalty included a contribution to costs. I was advised from the Bar that costs of $56,000 have been paid and the costs finding is not in dispute. A major reason for His Honour’s finding was that the fine of $15,000 was approaching the maximum of $20,000. Such a fine should, in his view, be reserved for the most serious cases. He determined that the Tribunal in four respects appeared to seek justification for the very severe overall penalty from matters to which no weight should have been given. There was no challenge to his findings on most of these matters.

[52] The challenge in respect of the Summary Proceedings Act and the Criminal Justice Act was whether it is necessary to inquire into the practitioner’s means before imposing a fine. The Judge referred to costs cases where the Court had made the decision notwithstanding the failure to provide financial information. The Courts had felt able to do so because the medical practitioner would have known that such matters were to be determined and had not provided information. Mr McClelland submitted that before imposing the penalty, the Tribunal received extensive submissions on behalf of both the Director and Dr Parry. In respect of Dr Parry’s financial position, all that was said was that they “are stretched significantly.” It was suggested that Dr Parry made a conscious decision not to put his financial position in front of the Tribunal and the effect of this may well have been that he benefited from this decision.

[53] The Judge drew an analogy from statements of this Court in Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 when it was suggested that medical professional disciplinary proceedings, while being strictly civil, are sufficiently analogous in some respects to criminal proceedings for assistance to be derived from the criminal rules of procedure. His Honour saw a fine imposed by the Tribunal as being in the same category as a fine imposed in a criminal proceeding and therefore subject to provisions similar to s 82 of the Summary Proceedings Act 1957 and s 27 of the Criminal Justice Act 1985.

[54] Clearly, these sections have no direct application to the present proceeding. However, in my view, the principles in those sections do have application in the present case. In fixing the amount of any fine, a Court must come to a decision as to the appropriate penalty having regard to the gravity of the offence (including both its prevalence in the community and the circumstances of the particular case), and any indications as to amount to be derived from the words or tenor of the section prescribing the penalty. Only after reaching a conclusion taking these factors into account do the means and the responsibilities of the offender become relevant.

[55] This approach to fixing the quantum of a fine was established by the English Court of Appeal in R v Lewis [1965] Crim LR 121. The approach of the New Zealand Court of Appeal is similar. In R v Rollo [1981] 2 NZLR 667 (CA) the Court affirmed that in all cases where a fine is considered just and appropriate, the Judge must measure it against the seriousness of the offence and have regard to the offender’s means and responsibilities, so far as they appear or are known to the Court, to ensure it has the effect of punishing him or her. Similarly, the Court noted in R v Briggs (CA 323/84, 9 May 1985) that a fine should not be in excess of what is appropriate to the offence, nor be excessive in relation to the offender’s means.

[56] The statutory obligation imposed upon the Courts is to consider the means of the offender. This obligation is expressed more meaningfully in common law where it has been repeatedly stated that a fine must be within the capacity of an offender to pay. See for example R v Churchill (No 2) [1967] 1 QB 190. I adopt with respect what Fisher J said in Wynotts v Commerce Commission (HC, Auckland AP 80/92, 13 July 1992) when considering fines under the Fair Trading Act 1986 (also a civil matter). He said it was convenient to pose three questions:

(a) What would be an appropriate penalty before considering an ability to pay?

(b) Should the penalty be reduced having regard to stated inability to pay?

(c) Should the penalty be increased having regard to unaccounted for proceeds of the offence?

[57] The offender should be given the opportunity to present evidence to the Court on ability to pay a fine. It was stated in R v Wright [1977] Crim LR 236, and adopted in R v Belcher (1981) 27 SASR 46, 50 by King CJ:

“[A]lthough it is . . . a fundamental principle of sentencing that financial obligations must be matched to the ability to pay . . . that does not mean that the court has to set out on an inquisitorial function and dig out all the information that exists about the appellant’s means. The appellant knows what his means are and he is perfectly capable of putting them before the Court.”

Furthermore, an offender cannot refuse to disclose or be evasive as to means and then challenge the fine on appeal on the basis that there was no evidence before the Court of ability to pay, see R v Higgins (1988) 10 Cr App R (S) 144.

[58] The principle has been imbedded in common law. If a fine is to be imposed, the Tribunal should have regard to the ability or inability to pay. If a medical practitioner refuses to provide that information, the Tribunal is able to proceed regardless. However, it should, in my view, have requested the information and if Dr Parry had not been prepared to give it, was perfectly entitled to impose the fine without reference to his means.

[59] While the Judge may have placed too much emphasis on the statutory provisions, the principle he was applying was, in my view, correct. There is therefore no question of law on this point.

Partial Restoration to the Register

[60] In its penalty decision, the Tribunal said at para 8.23:

“The decision to remove Dr Parry’s name from the register is accordingly a majority decision by the Tribunal. While the members are unanimous in their determination that Dr Parry should not resume his practice in clinical gynaecology, (indeed that he should not be permitted to practise clinical gynaecology at any time) one member was of the view that if his practice could be restricted to obstetrics and his ultrasound sub-speciality, then he could be permitted to resume his practice subject to appropriate conditions.”

[61] His Honour determined that the overall penalty was manifestly excessive. In referring to “overall penalty”, the Judge must have been referring to Dr Parry’s removal from the Register, his censure, the fine of $15,000, the order that he paid 40% of the costs of and incidental to the investigation which amounted to more than $56,000, and the publication of the orders in the New Zealand Medical Journal.

[62] The Judge concluded that in his judgment the Tribunal in four respects appeared to seek justification for the very severe overall penalty from matters to which no weight should be given. Although there appears to be no challenge to this finding, it is necessary to note it as it formed part of the overall consideration on the excessiveness of the penalty. The four factors were:

(a) That the Tribunal placed some weight on allegations that Dr Parry grossly misled medical practitioners, even though there was no separate charge in respect of this allegation;

(b) That the case had similarities with Tizard v The Medical Council of New Zealand & anor (Auckland HC, M2390/91, Barker, Thorp, Smellie JJ, 10 December 1992). In that case, there were seven different patients and not just one;

(c) The fine in Tizard and the fact that in considering this case, the Tribunal overlooked that the full Court took into account that Dr Tizard’s name had been struck from the Register. It was in this context that the Judge also considered the need for the Tribunal to consider Dr Parry’s personal circumstances;

(d) The rejection by the Tribunal of a submission made on behalf of Mr Parry that he did not intend the consequences of the matters for which be had been found guilty and there was no wilful disregard of his patient’s interest. This submission was not accepted. The Judge, rightly, in my view, pointed out that this submission was merely that Dr Parry’s actions were not deliberate in that he did not knowingly and deliberately embark on a course of actions knowing they were wrong.

[63] The Judge considered the issue of whether Dr Parry should be permitted to practise only in his sub-speciality of ultra and obstetrics. He noted that this issue was canvassed at some length in the suspension hearings and that the Tribunal gave considerable thought to the issue before the majority resolved that it should not be permitted. He could not find any evidence, expert or otherwise, which supported the conclusion which the majority came to in respect of this issue and which they expressed in the following way:

“It would be too difficult to monitor and enforce. It was not practical, and it would lead to confusion on the part of patients, potential patients and the public generally and in Dr Parry’s professional environment.”

[64] The Judge considered the Tribunal’s reasoning and concurred that Dr Parry had been grossly negligent to the point of recklessness. This, considered with other matters which the Tribunal could properly take into account, namely, the findings of professional misconduct in respect of the two other particulars and the competency review report, justified the striking off of Dr Parry, at least in respect of his gynaecological practice. He expressed this view while noting not only that both the Tribunal and the Director acknowledged the striking off of a doctor for a single act of serious gross negligence imposed a high watermark standard, but also that such a standard was sanctioned by the law. He accepted the ultimate penalty of striking off should not be applied in respect of a single act unless the negligence was gross to the point of recklessness or such that it displayed genial incompetence or obstinate indifference.

[65] The Judge also attempted to put the offending into perspective. He noted Dr Parry was guilty of disgraceful conduct in relation to one examination of one patient only and this did not support the public’s hue and cry. During a practice as a specialist obstetrician gynaecologist for over 30 years, he had attended to many thousands of patients. The publicity surrounding the case produced 120 unsolicited references written direct to the Tribunal from both patients and medical practitioners, all supporting Dr Parry. A further 60 pages of references were produced by Dr Parry from his own approaches. The Judge referred to 35-40 responses to a solicitor who had advertised for patients of Dr Parry to make contact with him with a view to litigation. Eight months after these contacts, there was no written evidence supporting the majority of those complaints although five had been referred for further inquiry. While putting the matter into perspective, the Judge noted that facts did not detract from the fact that Dr Parry had been found extremely wanting in relation to his treatment of Mrs Poutsma and that Dr Parry himself acknowledged this.

[66] On behalf of the Director, Mr McClelland submitted there were three errors of law in respect of His Honour’s decision to restore Dr Parry to the Register. These were:

(a) The Judge gave undue weight to the view of a minority member;

(b) He failed to adhere to the Dad principles; and

(c) He made a determination for which there was no jurisdiction.

[67] It is appropriate to consider the Dad principle first. The principle is stated by the Privy Council in Dad v General Dental Council [2000] Lloyds Law Reports 299. Mr McClelland relied upon a statement that it was well established for very good reasons that the Privy Council “will not interfere with the exercise of the discretion of the Professional Conduct Committee in matters relating to penalty.” However, Hope L also said at p 301 that “as a general rule therefore the Privy Council will be very slow to interfere with the decisions of the Committee on matters relating to penalty. He also noted however that no general test can be laid down and each case must depend on its own particular facts. Statements similar to those in Dad have been made in this country - see Ongley v Medical Council of New Zealand 4 NZAR 369.

[68] Mr Hodson submitted that the Court should be careful in applying the Dad principle, particularly as the Tribunal is a relatively new and junior Tribunal and there is a two tier appeal both to the District Court and on points of law to this Court. In his view, the District Court on an appeal is entitled to substitute its own views.

[69] The Dad principle is not and cannot be an absolute rule. To treat it as an invariable rule would be taking away an appeal right given by the Act. There is a specific right to appeal to the District Court against a decision to strike off - the combined effect of ss 110(1)(a) and 116(1)(a). On such an appeal the Judge may confirm, reverse, or modify the decision appealed from - s 118(2) of the Act. While Judges should be slow to vary a penalty decision of the Tribunal, which is the body best qualified to determine penalty, the Judge in this case had the power to do so. He did not make an error of law merely because he altered the penalty decision.

[70] The Judge’s ultimate decision did follow the views of the minority member. However, I do not conclude from the judgment that undue weight was given to those views. When considering the majority view that to allow Dr Parry to practise only in his sub-speciality of ultrasound and obstetrics was too difficult to monitor and enforce, the Judge referred to many factors. He could find no evidence to support the conclusions and found that all the evidence was to the contrary. This evidence included the unsolicited letters of support, a report from the Competence Review Committee confirming Dr Parry had the skills and knowledge required to practise medicine and in accordance with his registration, the support he had from the Clinical Director of Obstetrics and Gynaecology Department of Northland Health, and the Chief Medical Officer of Northland Health, the supervisory role which the Clinical Director was prepared to assume, the fact there are no complaints arising from Dr Parry’s expertise in ultrasound and that his skills were sorely needed in the Northland region, at the time he was one of only two people in New Zealand qualified at the level of his ultrasound sub-speciality and finally, the right to impose conditions under s 110 of the Act. It is implicit from this finding, in my view, that the Judge considered the Tribunal had too lightly rejected the restricted practice on the grounds that the imposition of conditions was too difficult to monitor and enforce. A finding in accordance with the views of the minority member does not mean that those views were adopted merely because they had been expressed by that member. The submission that undue weight was given to the minority member is, in my view, not apparent from the judgment or made out.

[71] The submission that the Judge made a determination for which there was no jurisdiction is correct. However, I see this as a technical matter. There is no Register of Gynaecologists and an order that Dr Parry be removed from that Register has no effect. The only Register that a medical practitioner can be removed from is the Register of Medical Practitioners. To give effect to the Judge’s intent, it is necessary to reinstate Dr Parry to the Register and impose conditions that he only practise in the limited fields referred to. This was, in effect, the substance of the Judge’s decision and the sealed judgment gave effect to this substance. Unless the Director can succeed on other grounds, this Court will give effect to that substance by making the appropriate orders. The case stated has been worded to give effect to the substance of the order.

[72] If the Judge’s decision on penalty is upheld, it is, in my view, at the limit of what a Judge in the District Court should do in altering a penalty of the Tribunal. Just as the Tribunal’s finding of disgraceful conduct is at the high watermark, so is the Judge’s decision to alter the penalty in this matter. A District Court Judge should not lightly vary a penalty imposed by the Tribunal, particularly when it relates to clinical matters. The Tribunal has been set up on the basis that it has particular expertise and experience in medical and clinical matters. This also applies to the lay members who will obtain such experience while on the Tribunal. Of further concern in this case is that the majority of the Tribunal had a particular concern that the facts of the case cast doubts on Dr Parry’s general professional and clinical judgment as well as his judgment in gynaecological matters. The Judge referred to this concern but did not address it particularly. It was, however, a matter which he obviously took into account. The Judge concluded that the conditions imposed protected the public in this matter. While there will naturally be unease where a Judge on appeal alters the penalty imposed by the Tribunal, there is jurisdiction to do so. This Court can only uphold an appeal against a District Court Judge if there has been an error in law. Only three such errors were suggested by the Director and in my view, the Judge did not err as alleged. This Court can not therefore find in favour of the Director.

The conditions

[73] The submission on behalf of the Director was that the Judge should not have ordered that the conditions under which Dr Parry should be permitted to practise should be agreed between counsel. Rather he should have referred this matter back to the Tribunal under s 119 of the Act.

[74] The basis of the submission was that he did not have the skill or expertise to determine appropriate conditions to ensure the safety of the public. It is the Tribunal which is the specialist body and it can best determine what conditions are appropriate to meet its concerns for the safety of the public and which conditions are workable and enforceable.

[75] In this case there was consultation between all counsel, including counsel for the Tribunal. Ultimately, the Judge did determine the conditions after hearing submissions from counsel. The Tribunal’s counsel abided. The provision of his order dealing with the conditions states:

“6. The appellant may practice as an obstetrician and in his sub-speciality, ultrasound, on the following conditions.

a. That the appellant for a period of [3] years from the date of this order (with leave to apply to the Medical Council for removal or variation of conditions not before the expiry of one year after the practitioner commences practice) practise only in the areas of obstetrics and ultrasound

b. That the appellant for a period of [3] years from the date of this order (with leave to apply to the Medical Council for removal or variation of conditions not before the expiry of one year after the practitioner commences practice) is permitted to practice only as a registrar under the supervision of a person holding vocational registration as an Obstetrician and Gynaecologist with current experience in ultrasound. (Leave to reapply to the Court).

c. That the appellant be and he is hereby referred to the Medical Council of New Zealand for a review pursuant to s 60 Medical Practitioners Act 1995 of his competence to practice medicine under the conditions herein set out.”

[76] Under s 118 of the Act, the Judge may confirm, reverse or modify the decision or order appealed against or make any decision or order that could have been made by the person or body that made the decision or order appealed against. Judges do have the power to refer appeals back for reconsideration under s 119 of the Act, but have no obligation to do so. In this case the Judge was entitled to fix the conditions.

[77] There was no error in law in the decision made by the Judge. He invited counsel to confer and agree on appropriate conditions to permit Dr Parry to practise under supervision and competence review in the areas of obstetrics and ultrasound only. The matter was then to be referred back to him for an appropriate order to be made. He made the decision as he was entitled to do and there was no denial of natural justice.

Answers to questions

[78] The answers to the questions in the case stated are:

(a) The Judge did not err in law when determining that there was no bias on the part of the Tribunal. He applied the correct legal test for apparent bias and also effectively found there was no actual bias.

(b) The Judge did not err in law by applying the wrong legal test when upholding the Tribunal’s decision of disgraceful conduct. The legal test as to what amounts to disgraceful conduct was appropriate in the circumstances.

(c) The Judge erred if his finding was that s 82 of the Summary Proceedings Act 1957 and s 27 of the Criminal Justice Act 1985 had direct application to penalty in this case. However, the principles in those sections did have application.

(d) The Judge did not err in law when determining that the Tribunal had a duty to inquire into the means of Dr Parry before imposing a fine. However, in the circumstances of this case it was for Dr Parry to advise particulars of his financial circumstances.

(e) The Judge did not err in law when, in effect, restoring Dr Parry to the Register of Medical Practitioners for the purposes of practising in Obstetrics and Ultrasound only.

(f) The Judge did not err in law in ordering that the conditions under which Dr Parry should be permitted to practise should be agreed between counsel. The Judge made the final order as he was entitled to do.

[79] The only answer which could affect the penalty decision is the answer in para 78(d), or more particularly, the rider to it. However, the Judge in reducing the fine was influenced by the maximum fine and this consideration was not under appeal. In the circumstances the findings of the Judge in his judgment of 30 May 2001 are, in accordance with the powers in R725 of the High Court Rules, confirmed.

[80] No submissions were made on costs and my tentative view is that they should lie where they fall. If either party wishes to pursue costs, counsel may file memoranda.