Vohora v A Professional Conduct Committee
[2012] NZHC 1013
•16 May 2012
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2011-412-000762 [2012] NZHC 1013
BETWEEN RAVI VAS VOHORA Appellant
ANDA PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: (On Papers)
Counsel: C S Withnall QC for Appellant
M McClelland and H Brown for Respondent
Judgment: 16 May 2012
JUDGMENT OF WHATA J ON PENALTY
[1] Mr Vohora engaged in serious professional misconduct amounting to malpractice in relation to his scope of practice. Among other things, Mr Vohora refused to keep a controlled drug register (‘CDR’) or to document standard operating procedures (‘SOPs’) in purposeful dereliction of his professional duties. Mr Vohora claims to have been making a principled protest against regulations and rules that he says undermine rather than further his professional responsibilities. This judgment is about what penalty should be imposed on Mr Vohora.
Background
[2] The background to this judgment is set out at length in my judgment dealing with Mr Vohora’s culpability.[1] I endorsed the Tribunal’s finding that Mr Vohora’s conduct amounted to malpractice within the scope of his practice. I considered that the failure to keep a CDR and SOPs was serious misconduct. The general thrust of
my assessment was captured at [63]:
[63] The tipping point is the deliberate extent of the failure. Mr Vohora’s principled protest, extended over a very lengthy period, is plainly contrary to the objective of securing standards of practice across pharmacists. Uncensored protest of this kind impacts on the integrity and capacity of the profession to self regulate. It is also a substantial departure from a stated purpose of the Act, namely to secure a consistent accountability regime across all health professionals.
[1] Vohora v A Professional Conduct Committee [2012] NZHC 507.
[3] I concluded however that cancellation of his practising certificate was excessive[2] and I invited the respondent to provide submissions on an alternative penalty. Mr Vohora was then afforded an opportunity to reply.
The Penalties Sought
[2] Ibid at [100].
[4] The respondent Committee seeks, in light of the seriousness of the offending and the aggravating features of this case, the following penalty:
a suspension of Mr Vohora’s registration pursuant to section 101(1)(b)
of the Act for a period of 12 months; and
b that conditions be placed on Mr Vohora’s practice for a period of 12 months after the suspension period ends pursuant to section 101(1)(c) of the Act, that:
ihe demonstrate, to the satisfaction of the Council, that he has systems and processes in place that will ensure that:
Aif he dispenses controlled drugs in the future, he maintains a CDR that complies in all respects with the Misuse of Drugs Regulations 1977
B he maintains appropriate SOPs
Che complies with all relevant legislation that applies to the operation of his pharmacy and his practice as a pharmacist
Dhe complies with the Pharmacy Council Code of Ethics 2011, the Pharmacy Council Competence Standards, and all other standards and regulations required by the Council including the standards contained in NZS8134.7
ii he demonstrates, to the satisfaction of the Council, competence in law and ethics and successfully completes New Zealand Pharmacy Legislation, provided by the School of Pharmacy, University of Auckland
iii the Council are to set the specific requirements for each of the conditions and any other requirements that the Council sees fit.
[5] It also seeks the costs by the Tribunal in the sum of $9,000 in respect of costs and expenses of the Committee and $7,000 in respect of costs and expenses of the Tribunal. This amounted to 30% of the actual costs involved.
[6] Publication of Mr Vohora’s name was also sought. Mr Vohora has now
acceded to this and hence my original judgment has now been published.
[7] Mr Vohora seeks a penalty of censure and costs against the respondent given his success on this appeal.
Plea in mitigation
[8] Mr Withnall QC submits by way of plea in mitigation:
(a) My reasons for reducing the penalty from cancellation apply with equal force to the penalty of suspension.
(b)Suspension would have the same effect as cancellation, because Mr Vohora could no longer own his pharmacy. Section 55D(2)(a) of the Medicines Act 1981 provides that more than 50% of the shares must be held by a registered pharmacist. The consequence of that, according to Mr Withnall, is that the pharmacy would have to close. The turnover of that pharmacy is said to be insufficient to support a locum and the pharmacy is already virtually insolvent.
(c) Suspension is an appropriate penalty only when public protection requires restoration of professional and clinical competence. Mr Withnall says that that is not the case here.
(d) Suspension would be purely punitive, given that Mr Vohora endorses the 2011 Code, under which he is now obliged to conduct his practice as a pharmacist.
(e) Mr Vohora’s “principled protest” has already cost him dearly. He notes that claims have not been made for dispensing controlled drugs during the period the register was not maintained. A consequence apparently of the protracted non resolution of issues relating to past audits has been that Mr Vohora has had to subsidise the continuation of the pharmacy with funds from other sources. He has already had to lay off staff and is effectively working seven days a week.
(f) Conditions can adequately meet the purposes of penalty without the need for the suspension. Some of the proposed conditions of the Committee’s submissions, being those reproduced at [4](b)(i)A-D, are considered appropriate. It is noted, however, that systems and processes can never ensure that certain actions will be performed. Conditions conferring on the Pharmacy Council a power to determine whether Mr Vohora was competent in law or ethically are also said to be beyond the scope of powers properly conferred on the pharmacy.
Assessment
[9] Protection of the public, maintenance of professional standards, punishment and rehabilitation are established objectives of the penalty assessment.[3] Further, as Keane J said in A v Professional Conduct Committee:[4]
[3] Dawson, New Zealand Health Practitioners Disciplinary Tribunal 200/Nur09/139P, 28 April
2010; Wallace, New Zealand Health Practitioners Disciplinary Tribunal 221/Nur08/110P,
28 April 2009 at 84 – though there the Tribunal refers to the functions rather than guideline objectives. Refer also A v Professional Conduct Committee HC Auckland CIV 20-08-404-2927,
5 September 2008; Dentice v The Valuers Registration Board [1992] 1 NZLR 720 (HC); J v Director of Proceedings HC Auckland CIV 2006-404-2186, 17 October 2006; Patel v Complaints Assessment Committee HC Auckland CIV 2007-404-1818, 13 August 2007; Taylor v General Medical Council [1990] 2 All ER 263; Ziderman v General Dental Council [1976]
2 All ER 344.
[4] A v Professional Conduct Committee HC Auckland CIV 2008-404-2927, 5 September 2008
[81] First, the primary purpose of cancelling or suspending registration is to protect the public, but that ‘inevitably imports some punitive element’. Secondly, to cancel is more punitive than to suspend and the choice between the two turns on what is proportionate. Thirdly, to suspend implies the conclusion that cancellation would have been disproportionate. Fourthly, suspension is most apt where there is
‘some condition affecting the practitioner’s fitness to practise which
may or may not be amenable to cure’. Fifthly, and perhaps only
implicitly, suspension ought not to be imposed simply to punish.
[10] I need only add that the final penalty must serve the Act’s purpose:[5]
to protect the health and safety of members of the public by providing mechanisms to ensure that health practitioners are competent and fit to practise their professions.
[5] Health Practitioners Competence Assurance Act 2003, s 3(1).
[11] I return then to the misconduct. Mr Vohora knowingly acted in dereliction of his duty to maintain a CDR and to keep SOPs over a period of more than four and ten years respectively (perhaps longer). This misconduct, over such a prolonged period, jars heavily against the purpose of the Act just mentioned. Indeed it is clear that Mr Vohora’s objective was in fact to undermine the mechanisms put in place by the Council (and other health agencies) to secure competency and fitness to practice.
[12] Against that backdrop, suspension, not censure, is the proportionate outcome. Suspension better signals to Mr Vohora and other practitioners that recalcitrant breach of standards designed to protect the public will not be tolerated. Suspension also reinforces that this Court places a high value on the integrity and ability of the Council to promulgate and enforce those standards. The punitive consequences of suspension are thus, in my view, necessarily commensurate with the attainment of the Act’s purpose because a lesser penalty will fall short of doing so. Finally, suspension still affords the opportunity to re-engage in professional practice, on a proper basis, without reapplication. This accords with the objective of rehabilitation. Overall therefore, suspension better achieves the overall mix of objectives and statutory purpose than censure.
[13] I now turn to address Mr Withnall’s submissions. They have considerable merit, but ultimately I am not persuaded that censure is commensurate with the seriousness of the misconduct or as I have said, with the Act’s purpose.
[14] First, the factors I identified to reject cancellation are not sufficient to avoid the sanction of suspension. Those factors focus on the nature of the misconduct and
led, in my view, to the conclusion that cancellation would be a disproportionate
response. But the intentional breaches of professional standards are very serious because they derogate so clearly from the Act’s purpose. My analysis therefore was at all times on the borderline between cancellation and suspension. I accept however that these factors are relevant to the length of the suspension.
[15] Second, the financial impact on Mr Vohora is not such that I should impose a lesser penalty. It is a regrettable consequence of his principled protest. I take it from Mr Withnall’s submissions that Mr Vohora elected to forgo income in furtherance of that protest. In some quarters Mr Vohora will be lauded for his commitment. But I am bound by the Act’s purpose to secure protection of the public as a paramount consideration.
[16] Third, I am also conscious that suspension might have the effect of resulting in the pharmacy being closed. But, with respect to Mr Withnall’s careful submission on this point, that is not a foregone conclusion. It may be that Mr Vohora must diversify for a period and work in areas that do not require him to be a registered pharmacist. Alternatively, he may be able to secure funds for a locum. I am nevertheless prepared to defer commencement of the suspension to afford Mr Vohora an opportunity to get his affairs into order so that he might be able to continue to operate a business at his Maori Hill premises while his suspension is in place.
[17] Fourth, suspension is necessary to restore professional and clinical competence. It is readily apparent to me that Mr Vohora still does not grasp the gravity of his misconduct. The latest submissions on his behalf suggest that he feels vindicated by the recent version of the Code which now reflects his longstanding position. Apparently he is happy to comply with them. That might be so, but the Court’s concern is that Mr Vohora and other practitioners need to understand that compliance with minimum standards is mandatory, not discretionary. In addition, given the depth of his recalcitrance, I do not think censure alone will encourage the adjustment that is required to achieve an acceptable level of demonstrable professional and clinical competence.
[18] As to the term of suspension, I consider that a six months’ suspension properly reflects the gravity of the misconduct and the need to send a clear message
to health professionals that professional misconduct of this type will not go without consequence. In reaching a six month period I have applied the matters that influenced my decision to reject cancellation. While Mr Vohora’s conduct requires serious sanction, it is not the most egregious of its kind.
[19] I also consider that the suspension should be subject to conditions as specified by the Committee, including a requirement that there are systems that ensure that the stated outcomes are achieved. This component is a strong and valid aspirational marker guiding both the Council and Mr Vohora. I do, however, accept Mr Withnall’s submission that the condition reproduced at [4](b)(ii) is too wide and the requirement should be simply:
He successfully completes New Zealand Pharmacy Legislation, provided by the School of Pharmacy, University of Auckland.
[20] As foreshadowed at [16], I am going to afford Mr Vohora a period of three months from the date of this judgment to get his affairs in order.
[21] I also consider that the costs order made by the Tribunal is appropriate, again having regard to the nature and type of misconduct. Mr Vohora, however, being partially successful on this appeal, should have costs in this Court reduced by one- third to reflect the partial nature of his success.
Result
[22] The following penalty shall be imposed on Mr Vohora:
(a) Mr Vohora’s registration is to be suspended for a period of six
months, commencing three months from the date of this judgment;
(b) For a period of 12 months after the suspension Mr Vohora’s practice
shall be subject to the following conditions:
i.he demonstrate, to the satisfaction of the Council, that he has systems and processes in place that will ensure that
Aif he dispenses controlled drugs in the future, he maintains a CDR that complies in all respects with the Misuse of Drugs Regulations 1977
B he maintains appropriate SOPs
Che complies with all relevant legislation that applies to the operation of his pharmacy and his practice as a pharmacist
D he complies with the Pharmacy Council Code of Ethics
2011, the Pharmacy Council Competence Standards, and all other standards and regulations required by the Council including the standards contained in NZS8134.7
iihe successfully completes New Zealand Pharmacy Legislation, provided by the School of Pharmacy, University of Auckland
iiithe Council are to set the specific requirements for each of the conditions and any other requirements that the Council sees fit.
[23] The costs award by the Tribunal shall remain in place.
[24] There shall be costs in Mr Vohora’s favour in this Court, reduced by one-third to reflect the partial success of his appeal. If quantum cannot be agreed, submissions may be filed within 14 days.
Solicitors:
Rodgers Law, 151 Princes Street, Dunedin
Kensington Swan, PO Box 10246, Wellington 6143
Copy to:
C S Withnall QC, PO Box 7161, Dunedin
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