Vatsyayann v Professional Conduct Committee HC Hamilton CIV-2011-419-000511

[2011] NZHC 1855

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-000511

IN THE MATTER OF     the Health Practitioners Competence

Assurance Act 2003

BETWEEN  SURESH VATSYAYANN Appellant

ANDPROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing:         9 September 2011

Appearances: Appellant in person

R Carrajannis for Respondent

Judgment:      9 September 2011

JUDGMENT OF WOOLFORD J

(As to application to adduce fresh evidence)

Solicitors:

Russell McVeagh, PO Box 8, Auckland

Copy to:

Dr Suresh Vatsyayann, C/- 4A Cunningham Road, Beerescourt, Hamilton.

VATSYAYANN V PROFESSIONAL CONDUCT COMMITTEE HC HAM CIV-2011-419-000511 9 September

2011

[1]      The  appellant  appears  in  person.    He  applies  for  leave  to  adduce  fresh evidence.  His application is opposed by the respondent.

[2]      Following a nine day hearing in Hamilton from 7 to 17 February 2011, the

Health Practitioners Disciplinary Tribunal in a 93 page decision dated 16 March

2011, found a charge of professional misconduct brought against the appellant by the respondent to be established.   On 21 April 2011, it ordered that the appellant’s registration be cancelled, that he be censured and that he pay the sum of $256,000 in costs.     The  appellant  has  appealed  against  both  the  substantive  finding  of professional misconduct and the penalty imposed.

[3]      The appellant now seeks an order that his affidavit affirmed on 10 June 2011 be admitted as evidence in the appeal.  Prior to the Tribunal hearing, he had prepared a statement of evidence which he has annexed to his affidavit.  However, in the end, he did not give evidence himself although he called a number of witnesses to give evidence of his behalf.

[4]      The appellant explains that the lawyer appointed by the Medical Protection Society to represent him before the Tribunal withdrew at short notice leaving him with no choice but for his daughter, Ms Joy Foot, to represent him at the Tribunal hearing.  He states that his daughter, who had no legal training, persuaded him that he should not give evidence before the Tribunal, by sending him notes during the hearing threatening to leave if he said a word.

[5]      The appellant also states that he misunderstood the advice given to him by Mr J Upton QC, who was a technical advisor to the Tribunal.   He explains that although advised of his right to appeal if the Tribunal made an adverse finding he had  no  idea  that  if  he  did  not  give  evidence  before  the Tribunal  he  would  be automatically barred from giving evidence before the High Court.

[6]      A staff member at the firm retained by the respondent has sworn an affidavit in which he annexes the notes of evidence which record the advice given to the appellant at the hearing about the consequences of electing not to give evidence.

[7]      The  statement  of  evidence  that  the  appellant  annexes  to  his  affidavit  of

10 June  2011  is  not,  however,  in  reality  fresh  evidence.    It  was  filed  with  the Tribunal on 21 December 2010.  The Chair of the Tribunal acknowledged having the statement in the notes of evidence at page 289, line 28 and page 364, line 6.  At paragraph 23.6 of its decision dated 16 March 2011, the Tribunal also records that the appellant had filed a statement of evidence.

[8]      Although the Tribunal does not specifically refer to the appellant’s statement of evidence in its decision, it did make extensive reference to his case. At the outset, it gave an overview of his case as follows:

[33]      It was contended for Dr Vatsyayann that none of the particulars could be established.  Ms Foot submitted that the allegations relating to  patient  enrolments  could not be regarded as  being within the scope of practice of a general practitioner;  in some instances it was asserted that patients had consented, or were aware of, the fact of enrolment;   the possibility of IT issues was raised, as was the possibility of human error.  In short, it was denied by Dr Vatsyayann that he had breached relevant professional standards.

[34]     As regards the assertion of two consultations at once in the same room, the response was that privacy standards were maintained by the  provision  of  a  curtain,  so  that  consultation  with  one  patient would occur on one side, and a consultation with another patient could occur on the other side;  in short it was asserted that there was compliance with relevant standards, and that this particular could not be established.

[35]      As   regards   the   third   particular,   which   related   to   procedures undertaken  by  Mrs  Vatsyayann,  it  was  asserted  that  she  had extensive relevant experience;   and that having regard to patient needs and expectations it was appropriate for her to carry out such procedures as were proved to have been carried out by her;  and that there had been no breach of professional standards therefore, by Dr Vatsyayann. The particular was denied.

[36]     Finally, with regard to the fourth particular, it was submitted there were no irregularities, and that patient notes had been completed to the best of the practitioner’s ability. This particular also was denied.

[37]      For  the  practitioner,  evidence  was  called  from  four  patients,  an expert, a representative of the Taiora PHO and a representative of the Waikato DHB.   Finally, evidence was also called  from Ms Foot relating to the practices of the Family Clinic.

[9]      The  Tribunal  then  reviewed  the  history  of  the  Family  Clinic  and  the

appellant’s background and responsibilities.   Then, at paragraph 43, the Tribunal

stated it was necessary to consider a submission made for the appellant as to the extent of his scope of practice.  It arose because of an opening statement made by the appellant’s daughter at the commencement of the hearing that patient enrolment issues were not an aspect of the scope of practice.

[10]     The first particular of the charge against the appellant related to the enrolment of patients at the Family Clinic without their knowledge and/or consent.   After making specific findings about each of the 45 named patients, the Tribunal noted at paragraph 89 that there were a number of explanations advanced for the appellant which it was then necessary to consider. These were:

(a)       A download/upload problem. (b)          An IT corruption issue.

(c)       The  PHO  had  failed  to  identify  a  problem  with  patients  being

“confirmed enrolled”.

(d)      Operator error or mistake as to enrolments on 20 July 2005.

(e)       Operator error or mistake as to enrolments after 1 October 2005. (f)   Comparators.

(g)      Lack of harm.

(h)      Waiver of claim by DHB; and

(i)       A bewildering process.

[11]     The  second  particular  of  the  charge  related  to  patient  privacy.    After reviewing the evidence on this issue, the Tribunal made reference to the evidence from Dr Revell, who was called by the appellant, and then listed the defence points raised as including:

(a)       Emergencies.

(b)      Patients could not hear each other.

(c)       Evidence from patients who did not object.

(d)      Comparison with Accident & Emergency cubicles.

[12]     The  third  particular  of  the  charge  referred  to  an  unregistered  and/or unqualified person providing treatment and/or conducting clinical procedures.  This was a reference to the appellant’s wife.  The evidence from patients and staff at the Family  Clinic  established  that  the  appellant’s  wife  was  responsible  for  cervical smears and the Tribunal’s finding hinged on the issue of her qualifications for doing so. The Tribunal here made reference to submissions by the appellant’s daughter that the appellant’s wife was experienced and the breach not significant.   Reference is also made to Dr Revell’s opinion that the level of knowledge of the appellant’s wife would surpass the great majority of registered nurses and that it was legal for women to do smears on each other with consent.

[13]     The Tribunal followed  a similar process with  regard to vaccinations  and depo-provera injections by the appellant’s wife as well as the removal of IUDs.  In each case, the Tribunal considered the explanation put forward by the appellant’s daughter and witnesses called by him, including Dr Revell.   In considering the related issue of the appellant’s wife conducting herself so as to represent that she was a qualified nurse, the Tribunal had regard to evidence from the appellant’s daughter that there were attempts to resolve this.

[14]     The fourth and final particular of the charge related to inaccurate clinical notes which showed that the appellant had provided the treatment or performed the clinical procedure when he had not.  Given its earlier findings that the appellant’s wife had alone undertaken cervical smears in respect of a number of named patients, the Tribunal found patient notes which read “chaperoned by Sue” were inaccurate.

[15]     The appellant’s statement of evidence dated 20 December 2010 which he seeks to have admitted is rather limited in scope and does not address all particulars in  detail.    For  example,  there  were  45  patients  named  in  relation  to  the  first particular. The appellant refers to 8 of them only. The explanation generally given is clerical error (for example, paragraph 14 “Our records do not reflect that Mr Atwal is a  non-resident  as  part  of  perhaps  a  clerical  error,  which  they  should  have”; paragraph 18 “I accept responsibility for this error remaining in the system for this long”;     paragraph  21  “I  accept  responsibility  for  this  human  clerical  error”;

paragraph  22  “she  was  mistakenly  registered  by  staff  at  front  desk”.)    This

explanation was considered and rejected by the Tribunal.

[16]     Similarly, in respect of the second particular regarding patient privacy, the statement of evidence makes reference to emergencies and the care taken to lower volumes on both sides of the curtain to avoid being overheard.  Again, these explanations were considered and rejected by the Tribunal.

[17]     In respect of the third particular, the appellant accepts in his statement of evidence that he allowed his wife to carry out cervical smears on one or more patients while he was on site at the Family Clinic from June 2006 to April 2009 but says he trained her and ensured that he kept her up-to-date.  Similarly, he accepts that he allowed his wife to remove IUDs.   As to vaccinations, the appellant refers to standing orders in place between him and his wife.  The issue of the validity of the standing orders and the appellant’s compliance with them was considered by the Tribunal.  He also states that he has never seen or heard his wife represent herself as a qualified nurse on site.

[18]     Finally, as to the fourth particular relating to inaccurate clinical notes, the appellant gives an explanation only for notes made in relation to vaccinations given by his wife, whereas the Tribunal’s finding relates not to the inaccurate recording of vaccinations but to the inaccurate recording of cervical smears undertaken by his wife.

[19]     I have formed the view that the various explanations put forward by the appellant in the statement of evidence were, by and large, all before the Tribunal either  in  the  form  of  previous  correspondence  (for  example,  the  reference  in paragraph 104 of the Tribunal’s decision to the statements made by the appellant in his correspondence), submissions by his daughter (for example, the reference in paragraph 43 to her opening statement), evidence given by the appellant’s daughter herself (for example, the reference in paragraph 89.1 to her evidence as to a download/upload problem) and by an expert also called on his behalf, Dr Revell (for example, the reference in paragraph 124.12 to Dr Revell’s opinion as to the qualifications of the appellant’s wife to undertake cervical smears).

[20]     This is acknowledged in the notice of opposition filed by the respondent at paragraph 2(c), where it is stated:

The statement does not contain any relevant evidence that was not already before the Tribunal, through other PCC and defence witnesses at the time of its determination.

[21]     The position I have therefore reached is that an order under r 20.16 High Court Rules is unnecessary.   I am, however, conscious that the appellant is representing himself.  Justice must be done to his appeal but it must also be seen to be done by the appellant.

[22]     In those circumstances, therefore, I recommend that the Court hearing the appeal should have regard to the explanations contained in the appellant’s statement of the evidence when considering his appeal. Although, these explanations appear to have been before the Tribunal in one form or another and considered by it, the appellant should have the opportunity to present his case in such a way as to enable his submissions to be properly and fairly considered on appeal.

[23]     The appellant has also very recently filed a supplementary affidavit dated

5 September 2011.  There is a considerable amount of irrelevant material contained in the affidavit and an allegation that the prosecution lawyers instructed one of his former staff members to give false evidence before the Tribunal.   In addition, the appellant restates his various explanations under headings such as “Mistakes made by staff”, “Vaccinations by Subhash”, “Cervical Smear Taking”, “IUD Removal”, “Privacy”, and “Inaccurate Clinical Notes”.  Nothing would be gained by looking at this in any detail now or dealing with any further interlocutory applications relating to its admissibility.  It is important that this appeal be set down as soon as possible so the appellant can have his day in Court.

[24]     For the benefit of appellant, I note that although s 109 Health Practitioners Competence Assurance Act  2003  states  that  an  appeal  is  by way of  rehearing, McGechan on Procedure[1]  makes it clear that the expression “appeal by way of

rehearing” has a technical meaning.   It does not mean that the Court starts with a

clean slate.  The Court does, however, have to come to its own conclusion, based on the material presented to the Tribunal and any further evidence which has been admitted.

[1] HR20.18.01

[25]     To progress the matter to a hearing, I confirm timetabling orders made by

Fogarty J on 22 June 2011. They are as follows:

(a)       The appeal is to be heard at 10:00 am on 11 November 2011. (b)       The time for the hearing is estimated to be one full day.

(c)       The appeal is classed as a category 2 proceeding for the purposes of the High Court Rule 14.3.

(d)      The appeal is to be heard by a single Judge.

(e)       The appellant is to file and serve a common bundle of documents and any further  submissions  he  wishes  to  file  by 5:00  pm  on  Friday,

14 October 2011.

(f)       The respondent is to file and serve its submissions by 5:00 pm on

21 October 2011.

Woolford J