Vatsyayann v Professional Conduct Committee

[2010] NZCA 153

IN THE COURT OF APPEAL OF NEW ZEALAND

CA808/2009
[2010] NZCA 153

BETWEENSURESH KUMAR VATSYAYANN

Applicant

ANDPROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing:20 April 2010

Court:Hammond, O'Regan and Arnold JJ

Counsel:A H Waalkens QC for the Applicant

J C Hughson for the Respondent

Judgment:28 April 2010 at 2.30 pm

JUDGMENT OF THE COURT

A            The application for special leave to appeal is declined.

B            The respondent shall have costs as on an application for special leave, on           a Band A basis, and usual disbursements

____________________________________________________________________

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]        This is an application for special leave to appeal to this Court against the decision of Simon France J in the High Court dismissing Dr Vatsyayann’s appeal against the finding of professional misconduct.[1]  By a judgment delivered on 9 December 2009 the Judge declined leave for a second appeal.

Background

[1]Vatsyayann v Professional Conduct Committee, HC Wellington CIV2009-485-259, 14 August 2009.

[2]        The Professional Conduct Committee laid one charge of professional misconduct against the applicant, in the following terms:

“TAKE NOTICE that pursuant to Sections 91 and 100 of the Health Practitioners Competence Assurance Act 2003 (“the Act”), the Professional Conduct Committee has reason to believe that grounds exist entitling the Tribunal to exercise its powers against Dr Vatsyayann and charges that in the course of his management of the patients referred to below, whether the listed particulars are considered individually or cumulatively, Dr Vatsyayann engaged in conduct that amounts to professional misconduct.

Particulars of charge

1             (Withdrawn)

2             (Withdrawn)

3That Dr Vatsyayann produced false and/or misleading clinical notes which assert that he was consulted by Tamara Browning on 2 April 2007 when Ms Browning did not consult with Dr Vatsyayann on that date.

4.That Dr Vatsyayann produced false and/or misleading clinical notes which assert that, when he was consulted by Tamara Browning on 14 May 2007, her carotids, peripheral pulses and abdomen were examined and she was checked for peripheral oedema.  He reiterated the accuracy of his notes in the letter dated 11 April 2008 to the PCC.

5.That Dr Vatsyayann produced false and/or misleading clinical notes which assert that, when he was consulted by Jaren-Anne Holland on 26 June 2007, he took a full family and personal history and examined her carotids and legs.”

[3]        In December 2008 the Doctor was found guilty of professional misconduct by the Health Practitioners Disciplinary Tribunal (Tribunal).  All three particulars were found to be established.  The Tribunal considered the found misconduct merited a sanction.  It imposed penalties of censure, a $5,000 fine, certain percentages of the prosecution’s and Tribunal’s costs, and it imposed conditions primarily focussed on supervising the Doctor’s note-keeping.

[4]        The circumstances leading to the charges are broadly that Dr Vatsyayann is a sole medical practitioner in a family clinic in Hamilton.  The complainant, X, was a sixteen-year-old girl with a two-year-old child.  She was recommended to the Doctor by her family support worker.  This was after X had unsuccessfully sought a prescription for antidepressants from her regular GP.  She attended Dr Vatsyayann’s clinic in April 2007.  She was given a prescription for antidepressants.  X alleged that she was not seen by Dr Vatsyayann, but rather by a Dr Gilgen who, at that time, was a suspended medical practitioner but worked at the clinic as a “GP Assistant”.  The significance is that the notices of the consultation state that Dr Vatsyayann saw X, when in fact it was Dr Gilgen who had seen her.  Dr Vatsyayann, however, did sign the prescription.  But Dr Gilgen, being a suspended medical practitioner, was not entitled to conduct a medical examination.

[5]        Dr Vatsyayann’s position was that it was him who had consulted X, albeit that in his role Dr Gilgen may well also have attended to X by triaging the patient and taking measurements including height, weight, and blood pressure.

[6]        The Professional Conduct Committee drafted the charge, above, on the basis that Dr Vatsyayann had produced false and/or misleading notes which asserted he was consulted by patient X when, it was alleged, X did not consult with him personally on that date.

[7]        The Tribunal made a factual finding that Dr Vatsyayann had not seen X (rather, that Dr Gilgen had) and therefore the notes were false.

[8]        On appeal Dr Vatsyayann did not challenge the finding that Dr Gilgen had seen the patient and that he had not.  Rather, the submission was (as had been raised only at the conclusion of the Tribunal hearing) that Particular 3 of the charge was inherently flawed.  It was said that if the prosecution was correct and the Tribunal found (as indeed it did) that Dr Vatsyayann had not seen the patient, he could not have “produced” the record.  Mr Waalkens’ argument was that “produced” must be interpreted literally as “wrote”, or “edited”, rather than “be responsible for”, as held by the Judge.

[9]        Simon France J was of the view that the essence of Particular 3 was that the record wrongly recorded Dr Vatsyayann as seeing X, when he had not.  The Judge said “that was always known to be the gravamen of this allegation”.[2]

The special leave application

[2] At [3].

[10]       Before us Mr Waalkens QC accepted that the questions sought to be advanced to this Court can be framed as follows:

(a)Did the Judge err in determining that Particular 3 of the notice of charge comply with the requirements of s 92 of the Health Practitioners Competence Assurance Act 2003?

(b)Did the Judge err in determining that the word “produced” in Particular 3 of the charge meant “being responsible for”?

[11]       Section 113(2)(b) of the Health Practitioners Competence Assurance Act 2003 provides for an appeal on a question of law from the High Court to this Court.  Counsel accepted that a leave application proceeds on the basis set out in s 144 of the Summary Proceedings Act 1957.  The authorities on that provision are very well established and need not be rehearsed here.  In short, the articulated questions of law which are involved in the prospective appeal must be such that by reason of their general or public importance or for any other reason, they ought to be submitted to this Court for decision.

[12]       Mr Waalkens sought to persuade us that these principles are met in this particular case.  Ms Hughson did not suggest that these are not questions of law but her central submission was that they are matters “which have no application beyond the facts of this case”.

Discussion

[13]       In our view Simon France J was correct in his fundamental holding that the gravamen of the misconduct charge was:  Did the record incorrectly state that Dr Vatsyayann had seen the particular patient?  There never was any doubt that was the central issue before the Tribunal.  That is confirmed by the fact that no application was made for any clarification of the particulars prior to or during the hearing.  It was only at the close of the hearing before the Tribunal that Mr Waalkens made what amounted to a subsidiary argument about Particular 3. 

[14]       On the appeal, Simon France J was alive to the concern about dishonesty which troubled Mr Waalkens.  He noted that the finding made against Dr Vatsyayann was that his responsibility fell into a category that what happened with respect to X occurred without his knowledge “but in circumstances of obvious culpability”.  The Judge said that was “the least” of the adverse findings that could be made once it was established that Dr Vatsyayann did not do the consultation.  The Judge was of the view that there was no unfairness in the process, nor the outcome, that required the High Court to intervene on an otherwise proven charge.

[15]       In our view the Judge was quite correct in the view that he took of this matter.  It has to be said that the special leave application does distinctly smack of an attempt to raise a point of a pleading character in an attempt to get another run at the facts of this case.

[16]       In any event, we agree with Ms Hughson that the implications of this decision have no realistic application beyond the facts of this particular case.  Mr Waalkens endeavoured to persuade us that there has been, in matters of this kind, some “slippage” in the way particulars are dealt with.  The short answer to that is that if there is some concern about what precisely is being alleged against a doctor then that should be sorted out prior to the Tribunal hearing, or at the very least, at the outset of the hearing.  We do not see this case as endorsing a more liberal approach to particulars than previously.

Conclusion

[17]       For the foregoing reasons the application for special leave is declined.

[18]       The respondent shall have costs as on an application for special leave, on a Band A basis, together with usual disbursements.

Solicitors:

Fisher Lamberg, Auckland

Medical Council of New Zealand, Wellington