TSM v Professional Conduct Committee

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…