TSM v Professional Conduct Committee

[2015] NZHC 3063

INTERIM ORDER PROHIBITING PUBLICATION OF THE APPELLANT'S NAME PURSUANT TO S 95(2)(D) OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003. SEE [60].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001541

[2015] NZHC 3063

IN THE MATTER OF

an appeal pursuant to Section 106(2) of the Health Practitioners Competence Assurance Act 2003

BETWEEN

TEMALESI SENITOVU MCCAIG

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing:	12 November 2015
Appearances:	A H Waalkens QC for Appellant P K Feltham for Respondent
Judgment:	4 December 2015

JUDGMENT OF PALMER J

This judgment was delivered by Justice Palmer on 4 December 2015 at 12.30 pm, pursuant to  r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:            A H Waalkens QC, Auckland

MCCAIG v A PROFESSIONAL CONDUCT COMMITTEE [2015] NZHC 3063 [4 December 2015]

Solicitors:           Luke Cunningham and Clere, Wellington

McBride Davenport James, Wellington

Summary

[1]    Dr McCaig appeals against the penalty imposed upon her by the Health Practitioners Disciplinary Tribunal for professional misconduct in forging and/or falsifying documents. She says the penalty of four months suspension (with three months credit), fines of $2,000, censure, a contribution to costs of $15,000 and declining to suppress her name, is excessive. I have applied the approach of the Supreme Court in Austin, Nichols & Co Ltd v Stitchting Lodestar to a general appeal1 and have assessed the merits of the penalty. I have concluded that the credit against the suspension period should be increased to the full four months. I have also concluded the contribution to costs should be reduced to $5,940 and I have upheld the refusal to grant name suppression. My reasons follow.

Law

[2]    Under s 106 of the Health Practitioners Competence Assurance Act 2003 (the Act), a person has a right to appeal against a penalty imposed by the Health Practitioners Disciplinary Tribunal (the Tribunal). The appeal is by way of rehearing (s 109(2)). The Court may “confirm, reverse, or modify” the Tribunal’s decision and may make any other decision the Tribunal could have made (s 109(3)). Beyond that, there was disagreement between the parties about the legal threshold which must be met in such appeals.

Submissions

[3]    For the appellant, Mr Waalkens QC submitted that the approach of the Supreme Court to general appeals in Austin, Nichols applies to appeals from the Tribunal including on penalty. He emphasises that approach confers upon the appeal court the responsibility of arriving at its own assessment of the merits of the case. The alternative is the approach in May v May to an appeal against the exercise of a discretion where the tribunal needs to be shown to have: acted on a wrong principle;

1      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

failed to take into account a relevant consideration; taken into account an irrelevant consideration; or been “plainly wrong”.2 Mr Waalkens submitted that the May v May approach does not apply to penalty decisions of the Tribunal, other than in relation to name suppression where the Court of Appeal has stated that it does apply.3

[4]    For the respondent, Ms Feltham submitted that the approach to appeals of this nature is not settled. She submitted, following the judgments of Collins J in Roberts v A Professional Conduct Committee of the Nursing Council and Ronald Young J in Joseph v Professional Conduct Committee,4 that the nature of the decision under appeal and the process by which the decision is reached determine the approach. She further submitted that the imposition of a penalty by this Tribunal involves an exercise of discretion with which an appellate Court should not interfere provided the penalty imposed is within the range of reasonable responses to the misconduct. This approach, she says, recognises that imposition of penalties is not a mathematical exercise and that opening every penalty decision by the Tribunal to a full merits review would render the Tribunal’s penalty process nugatory.

General appeals and appeals against the exercise of discretion

[5]    In many practical situations the two approaches would not yield different results. A decision that is plainly wrong will (hopefully) differ from an appellate court’s assessment of its merits. A decision that is not plainly wrong may well be the same as an appellate court’s assessment of the merits. Indeed, both parties here claim that they are correct under either approach. In a marginal case, however, there could be a difference between the two approaches in the result they yield.

[6]    The generic authoritative statement of the law relating to tests for appeals is the Supreme Court’s unanimous judgment in Austin, Nichols & Co v Stitchting Lodestar.5 Its “short answer” is that, in a general appeal on fact and law (there, from the Commissioner of Trade Marks) the High Court should come to its own view of the

2      May v May (1982) 1 NZFLR 165 (CA) at 170.

3      Rowley v Skinner v Commissioner of Inland Revenue [2011] NZCA 160 at [12]-[13] and B v R

[2011] NZCA 331 at [9]-[10].

4      Roberts v A Professional Conduct Committee of the Nursing Council [2012] NZHC 3354; Joseph v Professional Conduct Committee [2013] NZHC 1131.

5      Austin, Nichols & Co Inc v Stichting Lodestar above n 1.

merits and the weight it gives the Commissioner’s decision is a matter of judgement.6 If the Court is of a different view from the Commissioner it is therefore of the opinion the Commissioner is wrong and must act on its own view.7

[7]    The Supreme Court observed that the appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal.8 “It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it.”9 The Court acknowledged the weight to be given to the decision under appeal is influenced by factors such as whether the tribunal had a particular advantage.10 But “no ‘deference’ is required beyond the ‘customary caution’ appropriate when seeing the witnesses provides an advantage because credibility is important”.11 The appeal court “has the responsibility of arriving at its own assessment of the merits of the case”.12

[8]Importantly, the Supreme Court said:13

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[9]    Subsequently, in Kacem v Bashir, a majority of the Supreme Court emphasised the first sentence of this passage but went on to say:14

In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction between a

6 At [3].

7 At [3].

8 At [4].

9 At [4].

10 At [5].

11     At [13] (footnotes omitted).

12 At [5].

13     At [16] (footnote omitted).

14     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] (footnote omitted), citing May v May

above n 2 at 170, and Blackstone v Blackstone [2008] NZCA 312, (2009) 19 PRNZ 40 at [8].

general appeal and an appeal from a discretion is not altogether easy to describe in abstract. But the fact that the case involves factual evolution and a value judgment does not of itself mean the decision is discretionary.

[10]   The majority pointed to the power of the Court of Appeal to rehear the whole or any part of the evidence and to receive further evidence as “a classic indicator of a general appeal”.15 By contrast, it identified the language of the section, empowering the Court to decide whether to rehear evidence, as indicating the exercise of a discretion.

[11]   I do note that, despite their theoretical differences, there is a sense in which the difference between the Austin, Nichols approach and the Kacem approach may be more apparent than real. Both approaches require that, to be overturned on appeal, a decision must be “wrong” or “plainly wrong”.

Disciplinary appeals

[12]   In the field of disciplinary appeals there has been evolving High Court authority. In 2009, in Bhanabhai v Auckland District Law Society, a full Court of Priestley, Heath and Winkelmann JJ decided that professional misconduct findings should be considered afresh but that penalties should be treated as the exercise of discretion.16 In 2012, in Roberts v A Professional Conduct Committee of  the  Nursing Council, Collins J similarly applied the May v May approach to the imposition of disciplinary penalties.17 This approach was adopted in other High Court judgments in 2012 and 2013 with respect to appeals against decisions of the Tribunal.18

[13]   However in Hart v Auckland Standards Committee  (1)  of  New  Zealand Law Society in 2013, a full Court of Winkelmann and Lang JJ concluded that the Court must come to its own view of the merits on both misconduct and penalty.19 Subsequently, in Sisson v Standards Committee (2) of the Canterbury-Westland

15 At [33].

16     Bhanabhai v Auckland District Law Society [2009] NZAR 282 (HC) at [33].

17     Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand above n 4, at [41].

18     Katamat v Professional Conduct Committee [2012] NZHC 1633 at [37]-[38]; Joseph v Professional Conduct Committee, above n 4, at [36].

19     Hart v Auckland Standards Committee (1) of New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [12].

Branch of the New Zealand Law Society, a full Court of Pankhurst, Chisholm and Whata JJ confirmed that approach.20 It preferred the view that “both misconduct findings, and the resulting penalty decision, require an assessment of fact and degree and entail a value judgment; such that it is incumbent upon the appellate Court to reach its own view on both aspects.”21 This approach has been followed since.22 I consider it is now the established approach of the High Court in relation to disciplinary penalty appeals.

[14]   It is notable that the Kacem approach to decisions involving the exercise of discretion rather infuses an appeal with the characteristics of a judicial review. That suggests that where Parliament has provided for a right of general appeal, as here, the Austin, Nichols approach should be the default approach unless there is good reason for the Kacem approach to apply. I also agree with Brown J in Rabih v Professional Conduct Committee of Dental Council that there is no principled basis for treating a penalty as discretionary in a health professional context but subject to a general right of appeal in a legal practitioner context.23 And differently constituted tribunals should not reach different decisions in relation to equivalent conduct.24

[15]   In the abstract, “discretion” as a concept, and its relationship with the rule of law, has been the subject of extensive jurisprudential consideration.25 In practice, of course, there are elements of discretion in many aspects of the judicial enterprise, including the identification of which law is relevant, the identification of which facts

20   Sisson  v Standards  Committee  (2) of the  Canterbury-Westland Branch  of the New Zealand   Law Society [2013] NZHC 349, [2013] NZAR 416 (Panckhurst, Chisholm, Whata JJ) at [14]. Leave to appeal this judgment was subsequently denied by both the High Court (Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society Complaints Service Standards Committee [2014] NZHC 223) and the Court of Appeal (Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society Complaints Service [2014] NZCA 424).

21 At [15].

22 Professional Conduct Committee of the Dental Council v Moon [2014] NZHC 189 at [21]; Withers v Standards Committee No 3 of the Canterbury-Westland Branch of the New Zealand Law Society [2014] NZHC 611; and Davidson v Auckland Standards Committee No 3 [2013] NZHC 2315, [2013] NZAR 1519.

23     Rabih v Professional Conduct Committee of Dental Council [2015] NZAR 1100 at [13]-[14].

24 At [17].

25  For example: Ronald Dworkin Taking  Rights Seriously (Harvard University Press, 1977) at 31-   39; HLA Hart “Discretion” (2013) 127 Harv L Rev 652; Geoffrey C Shaw “H L A Hart’s Lost Essay: ‘Discretion’ and the Legal Process School’” (2013) 127 Harv L Rev 693; Mirko Bagaric “Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is the Instinctive Synthesis” (2015) 38 UNSW Law Journal 76.

are material, and in the interstices of the law’s application to the facts. At a basic level, I consider the rule of law requires that the application of law in imposing a penalty must involve at least a modicum of transparency, certainty and predictability. That, in turn, favours the explicit application of identified legal methodology and principles to shape what may otherwise become the relatively arbitrary exercise of discretion. Such methodology and principles constitute law. They mean a decision-maker’s reasoning can be more easily identified and analysed on appeal where an appeal is provided for by legislation. This appears to me to enhance the rule of law.

Legal principles relevant to disciplinary penalties

[16]   The legal principles relevant to the determination of disciplinary penalties are evident from the governing legislation. Collins J in Roberts has usefully identified seven principles, underlying the imposition of penalties, which are evident from the Act at issue here. I adopt (and paraphrase) them as follows. A penalty must:26

(a)protect the public (including by way of deterrence of other health professionals from offending in a similar way);

(b)facilitate the setting of professional standards of propriety and professional conduct;

(c)punish the health practitioner;

(d)rehabilitate and reintegrate the health practitioner into the profession if the practitioner is capable of that;

(e)be comparable with the penalty imposed on others in similar circumstances;

(f)be based on assessment of the offending behaviour against the spectrum of penalties available, with the maximum penalties being reserved for the worst offences;

26     Roberts, above n 4, at [44]-[51].

(g)involve imposition of the least restrictive penalty that can be reasonably imposed in the circumstances; and

(h)be fair, reasonable and proportionate in the circumstances.

[17]   In addition, I add that all of the individual components of a penalty must be considered together so that the total penalty is assessed against the above principles.

Name suppression

[18]   Counsel for both parties accepted that a name suppression decision is the exercise of a discretion rather than a general appeal. The Court of Appeal accepted that to be so in a criminal context in Rowley v Commissioner of Inland Revenue where counsel had similarly agreed.27 In denying leave to appeal that decision the Supreme Court agreed that that was the correct approach to the appeal and agreed that anyway, in that case, there were insufficient circumstances to justify name suppression.28 The Court of Appeal has subsequently endorsed the approach.29

[19]   Section 95(2) of the Act confers a discretion on the Tribunal “if ... satisfied that it is desirable to do so” to prohibit the publication of the name of any person. The exercise of such a discretion is not an imposition or mitigation of a penalty. Rather the principle of open justice, that the section reflects, is an aspect of the nature of the judicial process that deals with alleged offending. This consideration may justify some difference in approach to name suppression appeals compared to penalty appeals.30 But it is not clear to me that it is sufficient to blur an appeal into a quasi-judicial review when Parliament has provided a right of appeal, given the rule of law difficulties of the correspondingly increased discretion.

[20]   In any case, I consider myself bound by the Court of Appeal’s approach in a criminal context. And I do not consider that there is a principled distinction between the approach to appeal of a name suppression decision in a criminal context and in a

27     Rowley v Commissioner of Inland Revenue [2011] NZCA 160 at [12].

28     Rowley v Commissioner of Inland Revenue [2011] NZSC 76 at [5]-[6].

29     B v R [2011] NZCA 331 at [9]-[10].

30     Brown J treated it as such in Rabih, above n 23 at [20]-[22].

professional  disciplinary  context.  I  note  that  Mr  Waalkens  expressly  reserves Dr McCaig’s right to clarify the correct approach to appeal of a name suppression decision on further appeal.

Costs

[21]   There was no dispute between the parties as to the law relating to the award of costs in professional disciplinary cases. In Vatsyayann v Professional Conduct Committee of the New Zealand Medical Council Priestley J identified the relevant considerations as:31

(a)professional groups should not be expected to bear all the costs of the disciplinary regime;

(b)members    who   appeared    on    charges    should   make    a    “proper contribution” towards costs;

(c)costs are not punitive;

(d)the practitioner’s means, if known, are to be considered;

(e)a practitioner’s defence should not be deterred by the risks of a costs order; and

(f)in a general way 50 per cent of reasonable costs is a guide to an appropriate costs order subject to a discretion to adjust upwards or downwards.

Facts

[22]   The bare facts of why Dr McCaig was penalised by the Tribunal here are clear from the charge:

31     Vatsyayann v Professional Conduct Committee of the New Zealand Medical Council [2012] NZHC 1138 at [34].

(a)she typed and signed a letter dated 13 February 2014 in the name of Dr Joanne Williams; and

(b)she forged the signature of Dr Williams on an “End of Run Assessment” form dated 13 January 2014.

Chronology

[23]The Agreed Statement of Facts before the Tribunal provides context.

[24]   In July 2011 Dr McCaig was accepted into the training programme of the Royal Australia and New Zealand College of Obstetricians and Gynaecology (RANZCOG) which requires a practitioner to have general registration and be practising in the obstetrics and gynaecology (O&G) field.

[25]   Dr McCaig had two years to meet the criteria of general registration and be practising in O&G in order to take her place in the RANZCOG programme in the December 2013 intake. She passed the New Zealand Registration Exams and was employed in July 2013 as a general House Surgeon (Intern) at Wellington Hospital. This gave her provisional registration. To attain general registration she had to satisfy four criteria, including the completion of four “runs”, while provisionally registered for a year.

[26]   In 2013 Dr McCaig was also under significant financial pressure to support herself and her son. This required her to sell possessions and live with a family member in Auckland, and to obtain night-shift work. Her husband left her and returned to Fiji.

[27]   Dr McCaig was offered a position as Senior  House  Officer  in  O&G  at Hutt Hospital that was to start on 4 December 2013. Employment in O&G was required both to enter the RANZCOG course and to obtain an exemption that she be provisionally registered for a year before obtaining general registration.

[28]   Dr McCaig asked that her general registration commence from 4 December 2013 so that she could take up the Hutt Hospital position, making her eligible for the

RANZCOG training. It appears that the Medical Council staff intended to recommend that this should occur but due to an administrative oversight prepared the relevant paper on the basis that the start date would be February 2014, not December 2013. In October, through another error, the application was granted (for February 2014) in Dr McCaig’s absence – so neither she nor the Council was aware of the error.

[29]   In November 2013 the health of Dr McCaig’s mother deteriorated rapidly in Fiji, due to cancer, and her husband requested a divorce. Dr McCaig missed out on the December 2013 RANZCOG intake because she did not have general registration.

[30]   In January 2014 Dr McCaig reapplied for general registration so she could reapply for the next RANZCOG training course in December 2014. The Council required a letter of support from her supervisor. On 13 January 2014 Dr McCaig stated by email to the Council that her supervisors were happy to sign off her paperwork and recommend her for general registration. At that stage the Hutt Hospital Intern supervisor was Dr Ormandy who was covering while Dr Williams was on maternity leave. However, on 31 December 2013, Dr Ormandy had told Dr McCaig that she could not sign forms to support general registration because Dr McCaig’s position in O&G did not meet the requirements of an Intern position.

[31]   On 15 January 2014 Dr McCaig’s mother died of cancer and Dr McCaig arranged to fly to Fiji the following day. On 16 January, before leaving New Zealand, Dr McCaig submitted her application for general registration that included a forged letter of support from Dr Williams and a false signature of Dr Williams on the End of Run Assessment form.

[32]   The Council contacted Dr Williams who contacted Dr McCaig who admitted what she had done. Dr McCaig then returned to the Council office to admit her action. Dr McCaig’s explanation was that she was in a hurry and a panic, so she forged the letter which she intended to be similar to a letter of support Dr Williams had signed in October 2013.

[33]   Dr McCaig’s practicing certification was renewed on 9 March 2015. She is currently generally registered and practices as a Registrar in O&G, though not at Hutt

Hospital. Both parties are agreed that there is no question about Dr McCaig’s competence.

Charges and finding

[34]   On 23 March 2015 the Professional Conduct Committee charged Dr McCaig under s 100(1)(a) and (b) of the Act with professional misconduct in forging and/or falsifying documents provided to the Medical Council for the purpose of gaining general registration.

[35]   The Tribunal heard the charge on 29 April 2015. On 19 June 2015 the Tribunal found the charge to be made out, a conclusion that is not appealed:32

as misconduct being malpractice in relation to Dr McCaig’s scope of practice and also being acts which brought or were likely to bring discredit to the medical profession and as misconduct that warrants disciplinary sanction for protecting the public, maintaining standards in medical profession and, to the extent relevant, punishing the practitioner.

[36]   The Tribunal noted that the forged letter was wrong in referring to the medical and surgical runs having been completed and the O&G run being partially completed.33 It concluded Dr McCaig knew that the forged letter was not correct and not similar to Dr Williams’ October 2013 letter. It also noted that:

(a)the Medical Council errors with the commencement date did not cause what had occurred because the runs could not have been completed until February 2014 at the earliest;34 and

(b)nothing prevented Dr McCaig from having Dr Williams sign the documentation as Dr McCaig had visited Dr Williams on 14 January 2014 for her to sign other documents.35

[37]   The Tribunal concluded that Dr McCaig had made a deliberate attempt to mislead the Medical Council into believing she had completed the requirements for

32     Professional Conduct Committee v McCaig 704/Med14/299P, 19 June 2015 (HPDT) at [4].

33     At [25]-[31].

34 At [37].

35 At [39].

general registration.36  It  considered  her  explanation  with  reference  to  the October 2013 letter to have been an attempt to avoid admitting using the forgeries to mislead the Council.

Penalty

[38]   The Tribunal stated that the disciplinary sanction it imposed was for the purpose of “maintaining standards, protecting the public and, to the extent necessary, punishing the practitioner”.37     It also referred to the need for deterrence of both     Dr McCaig and other practitioners in the future. It stated “[p]unishment is not the primary responsibility of the process except to the extent that that may result from other decisions or orders made and to the extent that deterrence is necessary”.38

[39]The Tribunal made the following decisions, for reasons I discuss below:39

(a)suspension for four months, with credit for “work circumstances in the previous periods which reflects the equivalent of a suspension for three months”;

(b)payment of a fine of $2,000;

(c)formal censure;

(d)the requirement that, on resuming practice, Dr McCaig notify her employer of the findings and penalty for a period of three years and, within 12 months, attend an ethics course at her expense approved by the Medical Council;

(e)payment of a contribution to costs of $15,000;

(f)publication of decision on the Tribunal’s website;

36 At [40].

37 At [45].

38 At [45].

39 At [5].

(g)no permanent name suppression.

Application of law to facts

[40]   Dr McCaig does not challenge her censure or the conditions on her resuming practice. She does challenge the period of her suspension, the fine and contribution to costs and the decision to decline name suppression. I consider the challenge to the suspension and fine in considering the overall penalty against the principles identified in paragraph [16] above. I consider the contribution to costs and name suppression separately.

Submissions on penalty

[41]   Mr Waalkens for Dr McCaig objected to Dr McCaig’s suspension and particularly to the term of suspension. He submitted that Dr McCaig had admitted her conduct, that the public was not at risk of harm, that her competence was not in question, that the behaviour was out of character, that a number of what the Tribunal had identified as aggravating factors were not aggravating, and that suspension was not consistent with comparable cases.

[42]   In relation to the period of suspension Mr Waalkens submitted that the nine months out of work as a practitioner had given Dr McCaig plenty of time to reflect on what had happened, that she had done so, and that she regretted her actions profoundly. He submitted that the equation of nine months’ time to three months’ credit against suspension is unsupportable and arbitrary. He also noted that a one month suspension equates to net salary of around $9,000 which allows it to be assessed in terms of the proportionality of the other payments required of Dr McCaig.

[43]   Second, Mr Waalkens submitted that the fine of $2,000 considered together with the costs award of $15,000 (25 per cent of total costs) do not adequately take into account Dr McCaig’s financial circumstances. The evidence shows she is in serious debt which affects her ability to pay and that the Tribunal misunderstood an aspect of her position. He submits that paying in total (including the fine) the equivalent of no more 10 per cent of total costs would be justifiable. Mr Waalkens submitted that the financial consequences of the overall decision are disproportionate.

[44]   In response, Ms Feltham emphasised that this is a case of clear and deliberate dishonesty which warrants suspension to signal the behaviour expected from medical practitioners. She submitted that the credit off the suspension was generous, the aggravating and mitigating factors are correctly identified and that other comparable cases demonstrate that a short suspension for first time misconduct involving premeditated dishonesty in respect of professional obligations is clearly open to the Tribunal.

[45]   Second, Ms Feltham submitted that a fine was required to maintain standards. She submitted that the authorities point to a starting point for costs being 50 per cent, that the only basis for reductions below that would be financial circumstances, and that the Tribunal had considered Dr McCaig’s financial circumstances.

The penalty

[46]   I agree with the Tribunal that, in addition to the censure and conditions on resuming practice, a suspension of four months and a fine of $2,000 were warranted as part of the penalty for Dr McCaig’s behaviour and are proportionate to the offending.

[47]   What she did, if it had succeeded, would have exposed the public to a medical practitioner who had not then satisfied the relevant qualifying requirements. Those qualifying requirements are intended to assure the public of the standard of medical practice. The principles of protecting the public by way of deterrence, and setting professional standards of propriety and professional conduct, are particularly relevant, ameliorated by the principle of rehabilitation. I do not consider that suspension for four months for this offending combined with a fine of $2,000 is out of line with similar cases that have been brought to my attention.

[48]   However, I do not agree with the Tribunal’s decision in giving only three months credit against the suspension. The Tribunal’s decision to restrict to three months the credit given for nine months off work as a practitioner appears to have proceeded from its determination that Dr McCaig be given time for reflection.40 It

40     At [57]-[58].

took into account that Dr McCaig lost her employment as a doctor after the offending and was out of work as a doctor for nine months.41 It considered her rehabilitation and the fact that no matters of professional competence arise in respect of the charges. And it encouraged Dr McCaig to continue with her practice as a medical practitioner.42 However it weighed those factors against “the need for Dr McCaig to have time for reflection and an appropriate further period of suspension would take that into account”.43

[49]   In this regard, I consider the Tribunal was wrong. It’s reasoning for crediting Dr McCaig with only three months off her suspension because she had nine months off work as a practitioner is arbitrary. It is not supported by the principles by which penalties are set and it is contrary to the principle of rehabilitation and the imposition of the least restrictive penalty that can be reasonably imposed in the circumstances. I consider that this conclusion holds whether an Austin, Nichols or Kacem approach to appeals is taken.

Costs

[50]   I also consider that an award of $15,000 as a contribution to costs is excessive in light of Dr McCaig’s financial circumstances.

[51]   Here, the evidence of Dr McCaig’s financial circumstances is that she has net debt of over $90,000 and her net income is virtually all accounted for in essential outgoings, including paying off her legal fees on a monthly basis for around the next three years.

[52]   The Tribunal’s decision says that it took the financial detail into account, but does not expose its reasoning in imposing an award of costs of $15,000, representing 25 per cent of the total costs. Its description of one aspect of Dr McCaig’s liabilities as being shared with others is wrong.44

41 At [58].

42     At [60]-[61].

43 At [61].

44 Dr McCaig’s liability for a loan in relation to a Fiji property is not shared, as the Tribunal assumed at [49].

[53]   My understanding of Dr McCaig’s financial circumstances is such that an order that she contribute $15,000 to costs would be above a proper contribution and would carry an unnecessary punitive element. Considering the evidence available to me of her means, I order that the costs contribution be $5,940 which is 10 per cent of the total costs. I do not consider it appropriate to take into account the fine in arriving at this figure, since costs should not be punitive in this context.

Name suppression

[54]   I have noted above that name suppression lies in the discretion of the Tribunal and that its appeal must be approached as such.

[55]   Here, Mr Waalkens put most emphasis on the embarrassment to Dr McCaig that would result from publication of her name in Fiji, through her ex-husband’s parents being in the medical profession there. His written submissions also noted the potential negative effects of publicity on Dr McCaig’s son. In support he cited B v R where the consequences of naming an offender for his wife and family justified name suppression.45

[56]   Ms Feltham characterised this aspect of the appellant’s case as “woefully inadequate” in facts. She noted that, beyond a relatively bald assertion, there is no hard evidence as to the effect of publication on Dr McCaig’s ex-husband’s family in Fiji – in contrast with the affidavit evidence available to the court in B v R. She also submitted that there was no evidence of the effects on Dr McCaig’s son. She submitted that the real effect of publication is embarrassment and that is insufficient to justify name suppression.

[57]   I agree with Ms Feltham’s submissions on name suppression. The starting point, illustrated by s 95(1) of the Act, is the principle of open justice. There must be some compelling reason why, in a particular case, that principle needs to be suspended. That is no different for professionals than for anyone else. The effects of publicity about proven offending are the effects of the offending itself, not of the penalty imposed by the Court.

45     B v R, above n 29, at [24].

Result

[58]I uphold the appeal to the extent that:

(a)Dr McCaig’s suspension for four months will be regarded as already served because of her period out of work as a medical practitioner; and

(b)instead of making a contribution to costs of $15,000, Dr McCaig will make a contribution of $5,940.

[59]   If the costs of this proceeding cannot be agreed between the parties, memoranda may be filed by 9 February 2016.

[60]   Under s 95(2) of the Act I order that Dr McCaig’s name be suppressed on an interim basis for the period of 20 working days in which she has to appeal this decision. If she does appeal this decision on the name suppression point, I order that the name suppression continue on an interim basis until determination of the appeal.

..................................................................

Palmer J