Wislang v Medical Council of New Zealand HC Wellington CP219/00
[2001] NZHC 540
•21 June 2001
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP219/00
BETWEEN MILES ROGER WISLANG
Plaintiff
AND MEDICAL COUNCIL OF NEW ZEALAND & ORS
First Defendant
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Defendant
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Defendant
Hearing: 7, 8 June 2001
Counsel: G D S Taylor for the Plaintiff
M F McClelland and N J Russell for the First and Third Defendants
B A Corkill for the Second Defendant (leave to withdraw)
Judgment: 21 June 2001
JUDGMENT OF WILD J
Solicitors:
Hanning Connor, Wellington for the Plaintiff
KPMG Legal, Wellington for the First and Third Defendants
DFC Fuller, Wellington for the Second Defendant
CONTENTS Paragraph No.
Introduction 1
Factual background 4
The legislation 38
First cause of action - Tribunal’s suspension decision of 8.10.99 41
Amended charge 46
Lack of legal representation 50
Error of statutory interpretation 52
Second cause of action - Tribunal’s substantive decision of 10.12.99 57
Legal representation and inadequate preparation 58
Dr Wislang not a medical practitioner 59
Tribunal misdirecting itself as to its reasons for re-amending the charge 62
Erroneous award of costs 63
Third cause of action - Council’s decision of 20.9.00 imposing conditions on Dr Wislang’s annual practising certificate
Competence 74
Reliance on Tribunal’s decision 78
Dr Wislang’s lack of overall ability to organise his affairs 79
Discretion 85
Result 86
Costs 87
Introduction
[1] The plaintiff, Dr Wislang, is a registered medical practitioner. He seeks judicial review of three successive decisions in 1999 and 2000 of the disciplinary and governing bodies of his profession. It is accepted that those decisions were exercises of statutory powers amenable to review under the Judicature Amendment Act 1972. He alleges that each decision is marred by numerous and cumulative errors of law.
[2] When charged Dr Wislang admitted professional misconduct in that for four years he practised without a practising certificate. During that time he treated patients and prescribed drugs. As a consequence of that misconduct Dr Wislang initially had his registration suspended until the charges against him were determined. That determination was to censure him, suspend him from practice for two months, fine him and order him to pay costs. Subsequently, he was permitted to obtain a practising certificate upon two conditions. He has not yet done so.
[3] In this proceeding Dr Wislang seeks to attain a position where all the penalties imposed on him, save for the censure, and one of the conditions upon which he was permitted to obtain a practising certificate and which he finds unobjectionable, are quashed.
Factual background
[4] After graduating in medicine in 1967 Dr Wislang practised medicine for several years before travelling overseas.
[5] His practising certificate expired on 31 March 1994 while he was abroad.
[6] Upon returning to New Zealand in or about August 1994 he again practised medicine until late April 1998.
[7] Consequent upon a patient’s complaint made in or about September 1998, the third defendant, The Complaints Assessment Committee of the Medical Council of New Zealand (I will refer to it as the “CAC”), on 21 May 1999, charged Dr Wislang under s 93(1)(b) of the Medical Practitioners Act 1995 (“the Act”) that:
“(a) In the course of performing hair transplantations upon Andrew Inglis (also known as Andrew Stylianou) during 1996 and 1997 practised medicine without holding a current practising certificate.
(b) And/or he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate.”
22 July 1999 was fixed for the hearing of the charge.
[8] By letter dated 11 June Dr Wislang informed the second defendant (“the Tribunal”) “I now formally fully admit the charge as made out against me”, and advised that he wished to be heard only as to penalty if and when appropriate.
[9] By letter on 3 August the Tribunal advised Dr Wislang that the CAC “has accepted your plea of guilty at the level of professional misconduct” and advised that it would hear his submissions as to penalty on 16 September. Although Dr Wislang acknowledges receiving that letter, he claims not to have received a bundle of background documents enclosed with it.
[10] On 27 August Dr Wislang applied to the first defendant (“the Council”) for a practising certificate for the year ending 31 March 2000. The Council responded (on 28 September) that it could not process this application until the Tribunal had determined the disciplinary charge against the plaintiff.
[11] On 3 September - 13 days before the scheduled hearing - the Tribunal wrote again to the plaintiff advising him that the CAC had amended the charge against him. The letter advised:
“The charge of professional misconduct has been altered to incorporate Section 109(f) of the Medical Practitioners Act 1995. You will need to take this into account when preparing your submissions on penalty. You may also wish to seek legal counsel to assist you in this matter.”
[12] The letter then set out the new charge, again repeating that the CAC had reason to believe that a ground existed entitling the Tribunal to exercise its powers under Section 109 of the Act. The amended charge read:
“The Complaints Assessment Committee, pursuant to Section 93(1)(b) Medical Practitioners Act 1995, charges that Dr Miles Wislang, Medical Practitioner of Auckland:
(a) In the course of performing hair transplantations upon X (also known as Y) during 1996 and 1997 practised medicine without holding a current practising certificate.
(b) And/or he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate.
These particulars amount to either professional misconduct and/or that Dr Wislang practised medicine outside the extent permitted by, or not in accordance with the conditions of, his registration or any practising certificate held by him.”
(I have substituted X and Y for the identity of the patient.)”
[13] Because of the minimum 20 working days notice stipulated in s 103(1)(d) of the Act, the hearing date was amended to 7 October 1999.
[14] At the hearing on 7 October the plaintiff appeared in person. The hearing commenced at 10.52 a.m. and continued into the afternoon, the Tribunal adjourning at 2.42 p.m. The transcript of the hearing occupies 28 pages. Dr Wislang made submissions, gave oral evidence on oath and was questioned. During the hearing the following points emerged:
[a] Dr Wislang confirmed he had knowingly practised medicine without a practising certificate since 1 April 1994. He explained:
“. . . and wrongly I didn’t reapply for my practising certificate I came back in a mind realising of course I had been sent the document in April, which was August when I came back from America and in the malaise of being back I wrongly reacted to the presence of this - I was in solo practice, I didn’t have a Secretary, I had nurse assistance sometimes, but my book-keeping was hopeless . . .”
And at another point:
“. . . I was a solo operator - it was neglect. I realise I slipped - there are very good reasons why one should have one. I wasn’t appraised of why these certificates were really necessary. I had this belief that practising certificates were not a supervisory assessment type of document, something that says you are fit to practice. I did look at the sheet that came in 1996 which asked for occupational assessment, specifics of what you’re engaged in, and I couldn’t see myself fitting into it. I am not a GP, I am not a specialist surgeon so what am I? I knew there were other with and without practising certificates and in a sense I was wrongly lulled into this downplaying the significance of it. It was an absurdity. I can’t altogether account for it. When I look at what a practising certificate achieves now I can see excellent reasons why I shouldn’t have neglected it. . . .”
[b] The Tribunal several times confirmed to Dr Wislang that its whole purpose was to ascertain and deal with matters of public interest and safety (cf s 3(1) of the Act).
[c] Dr Wislang told the Tribunal he had applied one or two months earlier for a practising certificate and intended to re-commence practising on his own account if he could obtain an annulment of his bankruptcy (he had been bankrupted on 1 April 19**).
[d] Dr Wislang explained that he thought the charge against him had been amended to reflect a change in the legislation. It became apparent that Dr Wislang had not appreciated that he now faced the possibility of being struck off the register of medical practitioners. The Chair of the Tribunal said at the conclusion of the hearing:
“CHAIR: it is clear that you, when we commenced this morning, did not realise that the Tribunal was considering penalty and that those penalties included removing your name from the register . . . yes
Obviously that is the gravest penalty that the Tribunal could impose We are concerned that you are not disadvantaged, or feel at all disadvantaged in any opportunity you had to present as much material to the Tribunal as you would wish. The Tribunal also feels that it would like more information and suspects that you have more information you would like to provide. We propose to ask you to, within 14 days of today’s date, provide any further such material by way of character evidence or any evidence relevant, having heard the thrust of our inquiry, and the nature of our inquiry so far as safety public issues are concerned. I then propose to invite Ms Davenport within 7 days after that to make any submissions by way of comment on that material and then we propose to reconvene the hearing as soon as possible after that time, because we are concerned at the gravity of this hearing for you, potentially, and we would like to ensure that we have all the information that we should have in determining this charge. In the meantime, we are going to make an order under s 104 of the Act, where you will see, under s 104(1)(a), the Tribunal has the power to suspend the registration of the medical practitioner. You have the right, once an order is made, and it must be made in writing and must contain a statement of the reasons upon which it is based. So I would urge you to take legal advice, whether on a probono basis, or the community law office, but if you wish to make a revocation of that order and get your practising certificate then you should apply to the Tribunal for revocation of that order.
...”
[15] By order, pursuant to s 104(1)(a) of the Act, and dated 8 October 1999, the Tribunal ordered:
“THAT the registration of Dr Miles Roger Wislang be suspended until the disciplinary proceedings in respect of which the Notice was issued have been determined.”
[16] The Tribunal’s reasons for that order are dated 13 October 1999. They include:
“4. A hearing as to the penalty which this Tribunal ought to impose was convened in Auckland on Thursday, 7 October 1999. In the course of the hearing Dr Wislang stated, inter alia:
(i) That he had not held a practising certificate since 1994;
(ii) That during the period April 1994 to April 1998, notwithstanding that he was aware that he had not obtained a practising certificate he had carried on his medical practice, which practise included carrying out hair transplants operations; advertising his medical services in the Yellow Pages and elsewhere; treating patients, including prescribing and administering drugs; and charging fees for medical services rendered in the course of his medical practice.
(iii)That he had obtained prescription medicines, drugs used in local anaesthetics and such other drugs as he considered necessary for his practice from pharmacists and drug suppliers in the knowledge that such pharmacists and drug suppliers thought that he had a practising certificate, and otherwise were acting in the belief that he was legally entitled to obtain said drugs and medications.
(iv) That when he had pleaded guilty to the Charge he was unaware that:
• The amended charge incorporated Section 109(f) of the Act. This was notwithstanding that the Tribunal, by letter dated 3 September 1999, gave Dr Wislang written advice of that fact AND that a copy of the Act had previously been provided to him by the Tribunal AND that he was again advised by the Tribunal to seek legal advice; and
• As a result of the amendment he was, by virtue of the operation of Section 110(2)(b), at risk of the Tribunal making an Order that his name be removed from the register of medical practitioners, i.e. that he could be struck off the register.
. . .
6. Dr Wislang also told the Tribunal that he was a bankrupt and that he had been ordered by the Official Assignee to cease trading as a sole practitioner in April 1998 and he had not sought employment as a medical practitioner because he preferred to work alone, and that he was not willing to work as an employee medical practitioner.
7. Dr Wislang advised the Tribunal that he has applied to the Medical Council for a practising certificate to enable him to recommence medical practice on his own account.
8. As a result of the evidence given by Dr Wislang the Tribunal has determined that Dr Wislang has demonstrated a lack of insight, judgment and ability to organise his affairs such that it is necessary and/or desirable having regard to the health or safety of members of the public that Dr Wislang’s registration be suspended pending the determination of the disciplinary proceedings against him.”
[17] Following the adjournment of the 7 October hearing, the plaintiff sent at least nine letters or facsimiles to the Tribunal. The gist of these was:
[a] (On 11 October, i.e. before the Tribunal had given its reasons) to state that he had not pleaded guilty to the amended charge and formally denied it; and to allege that, because he had already pleaded guilty to the charge originally laid, the CAC was functus officio and lacked jurisdiction to amend the charge which was therefore a nullity.
[b] To request (on 12 October, also before the Tribunal gave its reasons) a teleconference to deal with the question of the validity of the amended charge.
[c] (On 14 October) to allege further that, because no conditions attached to any practising certificate he had ever held, he could not have practised beyond the extent permitted by any such conditions, and to reiterate his submission that it was in nobody’s interests for the Tribunal to continue deliberating on penalty under a “mis-charge”.
[d] (On 15 October) to point out that, although his communications of 11 and 12 October preceded the Tribunal’s reasons dated 13 October, they appeared not to be reflected in those reasons, and certainly the point made in his 14 October communication was not, and again to press for an urgent teleconference to deal with the validity of the amended charge.
[18] In the face of these communications from Dr Wislang, the Tribunal appointed an Auckland Queen’s Counsel as its legal assessor. Having received the assessor’s advice, by Minute dated 4 November, the Tribunal notified its intention, at the commencement of the resumed hearing which it scheduled for 11 November 1999, and in exercise of its power in clause 14 of the First Schedule to the Act, to amend the charge against Dr Wislang by deletion of the allegation that he had breached s 109(1)(f) of the Act. That minute:
[a] Explained the reasons for that proposed amendment (i.e. the nature of the legal assessor’s advice) and indicated that the effect of the amendment was to reinstate the original charge.
[b] Stated that the Tribunal would invite Dr Wislang to confirm his plea to the charge “as it is now amended by this minute” at the commencement of the hearing.
[c] Assuming Dr Wislang maintained his plea of guilty to that charge, indicated the Tribunal’s intention on 11 November to receive submissions only as to penalty.
[d] Asked Dr Wislang to advise the Tribunal immediately if there was to be any change of plea.
[19] Having received the Tribunal’s minute, Dr Wislang on 5 November sent a further facsimile to the Tribunal. This:
[a] Contended that the original charge was also flawed, and suggested that it be further amended to remove any reference to professional misconduct, following which Dr Wislang “would consider entering a plea of guilty to the charge as so expunged”. Dr Wislang added, as a pre-requisite to pleading guilty, that he be given an assurance that no further charges were pending or would be laid against him by the CAC in respect of the original patient complaint.
[b] Submitted that the Tribunal’s interim suspension order of 13 October “incorporated as a manifestly principal reason . . . that (he) had pleaded guilty to a charge which carried the penalty of removal of (his) name from the medical register, ostensibly for reasons of public safety”, “always was spurious and unsustainable” and ought to be revoked immediately.
[20] On 8 November the Secretary of the Tribunal by facsimile advised Dr Wislang that the Tribunal would deal with the matters raised in his 5 November facsimile at the hearing on 11 November.
[21] By further facsimile later on 8 November Dr Wislang renewed his request that the original charge be amended and the order of suspension revoked before the hearing resumed on 11 November, so as to minimise the prejudice to him professionally from the 11 November hearing which was held in public.
[22] The Secretary of the Tribunal responded to Dr Wislang on 9 November. She said that the Tribunal did not intend further amending the charge. She pointed out that 11 November was the earliest date on which the Tribunal could hear Dr Wislang’s application for revocation, and pointed out that events were likely to overtake that application, as the suspension was only until the disciplinary proceedings had been determined, and the Tribunal intended to determine them on 11 November.
[23] The Tribunal’s adjourned hearing resumed on 11 November. Invited to enter a plea, the plaintiff pleaded guilty to practising without a certificate but not guilty to professional misconduct. Once the effect of s 109(2) had been explained to him, he pleaded not guilty to the charge as framed. The hearing then proceeded and is recorded in 15 pages of transcript. Significant points made by Dr Wislang in evidence include:
[a] He had incurred substantial, but as yet unknown, legal expenses in obtaining legal advice from two barristers.
[b] The “avalanche of paper” referred to by the CAC’s counsel was her fault, not his, since it was in response to the original, defective charge laid against him.
[c] All the costs of the 7 October hearing and of all the time and paper resulting from “the false charge”, should be borne by the bodies which promoted that charge.
[d] Taking issue with the interpretation of “medical practitioner” advanced by counsel for the CAC.
[24] Some of the evidence heard by the Tribunal has not been transcribed and is not before the Court.
[25] Having heard submissions from counsel for the CAC and from Dr Wislang (again appearing in person) the Tribunal determined:
[a] To suspend Dr Wislang’s registration for two months.
[b] To censure him.
[c] To fine him $8,500.
[d] To order him to pay $18,301, being 35% of the total costs and expenses of the CAC’s inquiry and prosecution and of the Tribunal’s hearings (totalling $52,289).
[26] The Tribunal’s interim decision setting out those penalties is dated 16 November and its subsequent supplementary decision giving its reasons is dated 10 December.
[27] Some lengthy passages from that 10 December decision are unavoidable:
“. . .
3.6 In response to questions from the Tribunal, Dr Wislang stated:
(i) That he had not held a practising certificate since 1994;
(ii) That during the period April 1994 to April 1998, notwithstanding that he was aware that he had not obtained a practising certificate he had carried on his medical practice, which practise included carrying out hair transplants operations; advertising his medical services in the Yellow Pares and elsewhere; treating patients, including prescribing and administering drugs; and charging fees for medical services rendered in the course of his medical practice.
(iii)That he had obtained prescription medicines, drugs used in local anaesthesia and such other drugs as he considered necessary for his practice from pharmacists and drug suppliers in the knowledge that such pharmacists and drug suppliers thought that he had a practising certificate and dealt with him in the belief that he was legally entitled to obtain such drugs and medications.
(iv)That when he had pleaded guilty to the Charge he was unaware that:
• The amended charge incorporated Section 109(1)(f) of the Act, i.e. notwithstanding that the Tribunal, by letter dated 3 September 1999, gave Dr Wislang written advice of that fact AND that a copy of the Act had previously been provided to him by the Tribunal AND that he was again advised by the Tribunal to seek legal advice; and
• As a result of the amendment he was, by virtue of the operation of Section 110(2)(b), at risk of the Tribunal making an Order that his name be removed from the register of medical practitioners.
3.7 As a result of this evidence and because he was clearly unprepared to present submissions on penalty (as a result of his pleading guilty to the charge), the Tribunal decided that it would be unfair to Dr Wislang if the hearing was to proceed when he was at any disadvantage and in the absence of his being able to seek legal advice.
3.8 The Tribunal also was concerned that Dr Wislang had indicated his intention of recommencing practice as soon as he could get his affairs in order and that he intended to make an application to the Medical Council for a practising certificate as soon as he was able to commence that process.
3.9 Accordingly, the Tribunal adjourned to consider the situation which had arisen and after it considered the evidence and submissions made up to that point in the hearing, it determined that Dr Wislang had demonstrated such a degree of a lack of insight, judgement and overall ability to organise his affairs that it was necessary and/or desirable having regard to the health and safety of members of the public that his registration be suspended pending the determination of the charge. The Tribunal simply came to the view that in all the circumstances the most prudent course to adopt was to ensure that the status quo was maintained until this matter could be resolved.
3.10 The Tribunal is satisfied that had Dr Wislang made any sensible and prudent attempt to obtain advice, or indeed to have acquainted himself with the relevant provisions of the Act by way of preparing for the 7 October hearing, the significant costs in terms of time and expense caused to himself, the Tribunal and to the CAC as a result of the necessity to adjourn the hearing, and the events that followed in the period after the original hearing was adjourned, would have been avoided.
3.11 The Tribunal is satisfied that all of these costs and the obvious costs in terms of stress and worry caused to Dr Wislang himself because the original hearing had to be adjourned, resulted entirely from Dr Wislang’s own conduct. Dr Wislang clearly lacked insight into the seriousness of his failure to obtain a practising certificate, which failure persisted for over four years. The Tribunal is satisfied that Dr Wislang’s failure to obtain a practising certificate and to make any adequate preparation for the hearing of the charge resulted from what appears to be an absence of any ability to organise his affairs appropriately.
3.12 This lack of judgment also displayed itself in other ways. For example, Dr Wislang also appears not to have given any thought to the jeopardy in which he placed other persons with whom he had dealings during the period he was carrying on his medical practice without holding a practising certificate. For example, the pharmacists and drug companies who filled prescriptions and/or supplied him with the medicines he required to carry on his practice, all in the belief that he was a “practitioner” within the terms of the relevant legislation, i.e. the Medicines Act, the Misuse of Drugs Act and the Medical Practitioners Act and therefore legally entitled to obtain the medicines he required to carry on his medical practice.
. . .
3.16 MR Raynor Asher QC, Barrister, of Auckland was appointed by the Tribunal, and the Chair, Mrs Brandon, met with Mr Asher to provide hm with a copy of the Tribunal’s file. After receiving and considering the advice provided to the Tribunal by Mr Asher, it determined that, in the circumstances of this case, i.e. in the absence of any substantive complaint and thus any evidence beyond the anecdotal and often confusing evidence given to the Tribunal by Dr Wislang himself in response to questioning by the Tribunal, the allegation that Dr Wislang breached Section 109(1)(f) of the Act should be withdrawn.
. . .
9. COSTS:
9.1 PURSUANT to Section 110 of the Act the Tribunal has the power to order Dr Wislang to pay part or all of the costs and expenses of and incidental to the inquiry and hearing.
9.2 DR Wislang submitted that a large proportion of the total costs incurred had occurred as a result of the CAC’s amending the charge and that he had incurred legal costs obtaining advice in the period between the adjourned hearing (7 October 1999) and the resumed hearing on 11 November 1999.
9.3 THE Tribunal has taken those matters into account. It has also taken into account the fact that Dr Wislang pleaded guilty to the charge on both occasions he was invited to plead. However the Tribunal also considered that it was appropriate to take into account the inescapable fact that had Dr Wislang given this matter the attention it required in the period between the time he was advised of the amended charge and the commencement of the hearing, a period of almost one month, the positive deluge of material which he generated following the adjourned hearing would have been avoided as it largely comprised material which could have been presented to the Tribunal in the form of submissions in the usual way. The Tribunal and the Complaints Assessment Committee have both undoubtedly incurred significant additional costs as a result of Dr Wislang’s failure to organise himself for the hearing and to take advantage of the material and assistance given to him by the Tribunal prior to the commencement of the hearing of the charge.
9.4 THE costs of the hearing have amounted to $52,288.97 apportioned:
Tribunal Expenses:
Hearing Fees $10,535.41
Accommodation and Meals 1,152.43
Advertising 86.68
Equipment and Room Hire 594.44
Legal Assessor 3,990.00
Photocopy 11.70
Stenographer’s fees 1,425.68
Tolls 221.34
Travel 5,384.74
23,402.42
CAC Costs:
Legal Counsel’s Fees 14,767.99
Member Fees 5,057.81
Catering 54.12
Sundry Expenses 215.61
Hire Room & Equipment 185.00
Legal Assessor Fees 8,606.02
28,886.55
TOTAL $52,288.97
9.5 INCLUDED in the Tribunal’s expense is $3,990.00 for the cost of appointing a Legal Assessor. This was a cost which was incurred, at least in part, at the request of Dr Wislang.
9.6 AS a general guide, a finding of guilt at a level of professional misconduct generally attracts an order for costs in the vicinity of 35-45% of the total amount of costs. For the CAC Ms Davenport submitted that an appropriate order for costs against Dr Wislang would be at the upper level; 45% of the total costs of the prosecution and hearing of the charge. Ms Davenport conceded that this would be higher than normal, but suggested that the additional time spent by the Tribunal and the CAC in prosecution of the charge would make such an order appropriate.
9.7 AS far as the Tribunal is concerned, this matter should have been determined within a one day hearing. This was well demonstrated by the fact that the resumed hearing was able to be completed in half a day leaving the Tribunal time to adjourn to deliberate and to resume the hearing to announce its decision. The Tribunal has no doubt that had Dr Wislang properly prepared and organised himself for the hearing of the charge, even in its amended form, the hearing could have been completed quite comfortably within the single day originally allowed.
9.8 THE principles which apply to the exercise of the Medical Council’s powers to make orders as to costs pursuant to the 1968 Act are equally applicable to the Tribunal’s powers under the 1995 Act. This principle was established by the Tribunal in Decision No. 14/97/3C.
9.9 IN Gurusinghe v Medical Council of New Zealand [1989] NZLR 139 the appellant medical practitioner had been ordered to pay costs amounting to $20,000.00. This amount was approximately half of the actual expenses incurred. The full Court of the High Court held that such a sum was not excessive and noted that the ordering of payment of costs was not in the nature of a penalty, but rather to enable the recovery of costs and expenses of the hearing.
9.10 IN a previous appeal, also dealt with in the High Court, an order for costs of $50,000 being two-thirds of the actual costs incurred, was upheld; O’Connor v Preliminary Proceedings Committee (High Court, Administrative Decision, Wellington, 23/8/90 Jefferies J, CP280/89). In that case as with Gurusinghe the orders made against the doctor prevented him from practising. Jefferies J in O’Connor, acknowledged that orders for costs in this type of proceedings will be substantial and commented that this should be known to any doctor to be so.
9.11 HOWEVER, the Tribunal is also minded not to lose sight of the fact that the charge did not include any substantive complaint of misconduct in terms of Dr Wislang’s clinical practice. Taking all of these matters into account including the fact that Dr Wislang advises that he has personally incurred considerable costs, the Tribunal is satisfied that an order that Dr Wislang pay 35% of the total relevant costs incurred is fair and appropriate.
. . .”
[28] The Tribunal’s decision covered other matters, including the reasons for the suspension, censure and fine imposed, but they are not relevant to this proceeding.
[29] On 9 December the plaintiff appealed to the District Court against the Tribunal’s order in respect of costs only. The District Court heard that appeal on 11 April, and dismissed it in a decision delivered on 27 April 2000.
[30] The two month suspension imposed by the Tribunal expired on 11 January 2000.
[31] On 7 February the plaintiff provided further information to the Council in support of his application for a practising certificate.
[32] On 2 March the Council advised the plaintiff that it proposed issuing a practising certificate subject to two conditions, the second of which was that the plaintiff nominated a general overseer who agreed to be his mentor.
[33] The plaintiff responded in detail on 29 March, including a request for clarification from the Council.
[34] As a new practising year intervened, the plaintiff on 27 July made a fresh application for a practising certificate.
[35] On 10 August the Council held a hearing into the plaintiff’s application. The plaintiff made submissions both through counsel and in person.
[36] On 20 September the Council advised the plaintiff of its decision to issue him with a practising certificate subject to the conditions:
[a] That he restrict his independent practice to hair transplants, and
[b] Nominate a general overseer who will agree to be his mentor.
[37] On 18 October the plaintiff issued the present proceeding seeking judicial review.
The legislation
[38] The following provisions of the Act are particularly pertinent:
“3 Principal purpose
(1) The principal purpose of this Act is to protect the health and safety of members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practise medicine.
(2) Without limiting the generality of subsection (1) of this section, this Act seeks to attain its principal purpose by, among other things,-
. . .
(b) Providing for the registration of medical practitioners, and the issue of annual practising certificates:
. . .
(e) Providing for the disciplining of medical practitioners:
. . .
9 Practice of medicine
No person shall practise medicine under the title of a medical practitioner (as defined in section 2 of this Act) unless he or she holds-
(a) Both-
(i) Probationary registration, general registration, or vocational registration; and
(ii) A current practising certificate; or
(b) Temporary registration or interim registration.
. . .
109 Grounds on which medical practitioner may be disciplined
(2) For the purposes of subsection (1) of this section, a medical practitioner is guilty of professional misconduct if that medical practitioner,-
. . .
(b) Being the holder of probationary registration, general registration, or vocational registration, practises medicine while not holding a current practising certificate.
. . .
110 Penalties
(1) In any case to which section 109 of this Act applies, the Tribunal may,-
(a) Subject to subsection (2) of this section, order that the name of the medical practitioner be removed from the register or any part of the register:
(b) Order that the registration of the medical practitioner be suspended for a period not exceeding 12 months:
(c) Order that the medical practitioner may, for a period not exceeding 3 years, practise medicine only in accordance with such conditions as to employment, supervision, or otherwise as are specified in the order:
(d) Order that the medical practitioner be censured:
(e) Subject to subsections (3) and (4) of this section, order that the medical practitioner pay a fine not exceeding $20,000:
(f) Order that the medical practitioner pay part or all of the costs and expenses of and incidental to any or all of the following:
(i) Any investigation made by the Health and Disability Commissioner under the Health and Disability Commissioner Act 1994 in relation to the subject-matter of the charge:
(ii) Any inquiry made by a complaints assessment committee in relation to the subject-matter of the charge:
(iii) The prosecution of the charge by the Director of Proceedings or complaints assessment committee, as the case may be:
(iv) The hearing by the Tribunal.
(2) The Tribunal shall not make an order under subsection (1)(a) of this section ordering that the name of a medical practitioner be removed from the register or any part of the register, unless the Tribunal has found the medical practitioner-
(a) Guilty of disgraceful conduct in a professional respect; or
(b) Guilty of a disciplinary offence against paragraph (e) or paragraph (f) of section 109(1) of this Act.
(3) Where the Tribunal is dealing with any matter that constitutes an offence for which the medical practitioner has been convicted by a court, the Tribunal shall not impose a fine under subsection (1)(e) of this section.
(4) In determining whether or not to make an order under subsection (1)(e) of this section that a medical practitioner pay a fine in respect of any conduct of that medical practitioner, and in determining the amount of any such fine, the Tribunal shall, where damages have been awarded against the medical practitioner, in respect of that conduct, under section 57 of the Health and Disability Commissioner Act 1994, have regard to the amount of that award of damages.”
[39] Whilst I need not set out ss 51-59 of the Act in full, they are also important and involve a fundamental change from the 1968 Act. Under s 52 the grant or renewal of a practising certificate is not automatic. The Registrar must refer to the Council any application where the practitioner has not practised medicine or held a practising certificate within the immediately preceding three years. Upon such a referral, the Council may only grant a practising certificate if satisfied that the applicant practitioner is competent to practise medicine in accordance with that practitioner’s registration or any conditions imposed in the practising certificate.
[40] Sections 60-65 of the Act also need not be set out in full, but I will need to refer to some of them. They contain the competence provisions of the Act.
First cause of action - Tribunal’s suspension decision of 8 October 1999
[41] The plaintiff alleges that this first decision of the Tribunal contained reviewable errors of law in that it was based on:
[a] The amended charge which could not validly have been laid.
[b] The proposition that a medical practitioner not legally represented before the Tribunal demonstrated a lack of insight and judgment.
[c] The proposition that a medical practitioner who made an error of statutory interpretation relating to the charges demonstrated a lack of insight and judgment.
[42] Based on these errors the plaintiff seeks a declaration that the Tribunal’s first decision was invalid.
[43] For the Council and CAC Mr McClelland made an initial submission that this relief is moot and futile. He pointed out that the interim suspension had expired when the Tribunal made its final decision with effect from 11 November. His argument was that any remedy at this stage would be pointless and have no effect on the plaintiff’s registration or ability to practise medicine.
[44] For Dr Wislang, Mr Taylor rejected this. First, as interim suppression under s 104 is based on “the need to protect the health or safety of members of the public”, it permanently stigmatises a practitioner. His second point was that the Tribunal’s first and second decisions were tied together, both depending on the propositions that Dr Wislang’s lack of legal representation demonstrated a lack of judgment and that the amended charge was an appropriate basis for making orders (the suspension order in the first decision, and the costs order in the second). I incline to the view that Mr McClelland is correct: now to declare a spent decision invalid is pointless. And there is plenty of authority that the Court ought not to exercise its discretion to make a declaratory order unless the declaration may be of some use: Turner v Pickering [1976] 1 NZLR 129, 141; Maddever v Umawera School Board [1993] 2 NZLR 478, 502.
[45] However, as Mr Taylor submits the first decision influenced the second, and possibly even the third, I consider the three errors alleged.
Amended charge
[46] I deal first with the allegation that the Tribunal’s order to suspend Dr Wislang in the interim was invalid, as it was based upon a defective charge.
[47] Dr Taylor’s argument is not so much that the Tribunal relied on the amended charge in making its decision, but that it did so notwithstanding that Dr Wislang had already raised the invalidity of that charge. The complaint is that the Tribunal either ignored Dr Wislang’s views, thereby breaching natural justice, or dismissed them as incorrect, thereby erring in law.
[48] Mr McClelland contended that was not correct, that the nub of the Tribunal’s concern was Dr Wislang’s acceptance that he had been practising since 1994 without a practising certificate, including treating patients and prescribing and administering drugs.
[49] I am unable to accept Dr Taylor’s submission. It was not the amended charge - the consideration that Dr Wislang now faced removal from the medical register - that influenced the Tribunal in suspending Dr Wislang in the interim, but Dr Wislang’s ready acceptance that he had practised medicine, treating patients and prescribing and administering drugs and medicines, for about four years without a practising certificate. Those were the public health and safety concerns which led to the interim suspension. It was not the potential penalty Dr Wislang faced that was instrumental in the Tribunal suspending him in the interim, but the seriousness of what he had admitted doing (practising for four years without a certificate) coupled with his explanations (“my book-keeping was hopeless”; “it was neglect”; “it was an absurdity. I can’t altogether account for it.” “. . . I shouldn’t have neglected it . . .”).
Lack of legal representation
[50] The argument for Dr Wislang posed three questions: did the Tribunal conclude that lack of legal representation demonstrated lack of insight and judgment on Dr Wislang’s part, if so is that sustainable as a matter of law and was it material to the Tribunal’s decision. Dr Taylor conceded that the Tribunal did not expressly state that Dr Wislang’s lack of legal representation demonstrated a lack of insight and judgment.
[51] On 7 October the Tribunal was confronted with a practitioner who readily conceded he had been practising medicine for the last four years without a certificate, and gave the explanations to which I have referred. The charge he was facing had been amended and the letter conveying it to him had expressly drawn his attention to s 109(1)(f) (the letter actually, incorrectly, referred to “Section 109(f)) and the implications of this in terms of penalty. The letter suggested Dr Wislang may wish to seek legal counsel. Despite that Dr Wislang appeared on 7 October unaware that he now faced being struck off the register. It was the culmination of those matters, but I judge primarily Dr Wislang’s practising without a certificate, which influenced the Tribunal in suspending him in the interim. The nub of the Tribunal’s concern was not the fact that he was not legally represented, but his general professional disorganisation and his failure to grasp the seriousness of what he had admitted doing. I see no fault in this aspect of the Tribunal’s decision.
Error of statutory interpretation
[52] Dr Taylor submitted that consideration of this error flowed from the two earlier alleged. I agree. And I do not consider it requires much additional consideration. Dr Taylor pointed out that when the Tribunal asked Dr Wislang whether he pleaded guilty to the charge read at the start of the 7 October hearing i.e. the amended charge, he replied “I entered that plea a long time ago”. That demonstrates one of the Tribunal’s concerns: that Dr Wislang had entirely failed to grasp the gravamen of the amended charge, indeed it suggests that he had simply paid no attention to it. His evidence that he thought the amended charge merely reflected a change in the legislation points in the same direction.
[53] I agree with Mr McClelland that it was not any misinterpretation by Dr Wislang of the Act which concerned the Tribunal, but the matters I have already several times referred to: practising for a number of years without a certificate as a result of professional disorganisation and neglect coupled with a failure to appreciate how serious that was.
[54] The three-pronged challenge to the Tribunal’s 13 October decision rested on Lord Radcliffe’s well known passage in Edwards (Inspector of Taxes) v Bairstow [ 1956] AC 14 at 36:
“. . . it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law.”
[55] I view this part of the argument for Dr Wislang as pedantic and unrealistic. The Tribunal had before it a medical practitioner who freely accepted that, through neglect and disorganisation, he had practised medicine for the previous four years without a practising certificate. He had not appreciated that an amended charge sent to him placed him in peril of being struck off the register. Indeed, he had either paid no attention to that amended charge or thought it did not alter matters. In those circumstances, the Tribunal saw no alternative to adjourning the hearing. The arguments for Dr Wislang, and they are quite detailed, reduce themselves to a submission that the Tribunal ought not to have taken any action in the interim. Based on Edwards v Bairstow, Dr Taylor argued that a Tribunal, acting judicially and properly instructed as to the law, could not have decided to suspend Dr Wislang in the interim. I entirely reject that. Had the Tribunal appreciated, at the start of the 7 October hearing, that the amended charge was invalid, then I imagine it would have exercised its powers (in clause 14 of the First Schedule to the Act) to amend the charge back to its original form, required Dr Wislang again to plead to that charge (he had earlier by letter indicated a plea of guilty) and proceeded with the hearing to a determination. A Tribunal “properly instructed as to the relevant law” would have appreciated the invalidity of the amended charge, and there is therefore an artificiality in applying the Edwards v Bairstow test to the 7 October situation. But in my view a Tribunal acting judicially but not appreciating the invalidity of the charge, could not responsibly have done other than suspend Dr Wislang in the interim.
[56] Dr Wislang’s first cause of action - his challenge to the Tribunal’s 13 October decision - fails in all respects.
Second cause of action - Tribunal’s substantive decision of 10 December 1999
[57] Dr Wislang alleges five errors of law vitiate this decision of the Tribunal:
[a] Holding that a person who is not legally represented before the Tribunal is imprudent and not sensible.
[b] Finding that Dr Wislang failed to make “any adequate preparation” for the hearing was unsupported by any evidence and/or invalidated by drawing on Dr Wislang’s decision not to be legally represented.
[c] Holding that Dr Wislang was not a “medical practitioner” in terms of the Medicines Act 1981, the Misuse of Drugs Act 1975, and the Medical Practitioners Act 1995.
[d] Misdirecting itself as to its own reasons for re-amending the charge against Dr Wislang.
[e] Error in its award of costs in that:
[i] It failed to remove from calculations the time and effort by all relevant parties (the Tribunal and the CAC) in respect of the amended charge.
[ii] The finding of a “deluge” of material between the hearings was not supported by any evidence.
[iii] It was based in part on the erroneous conclusion that a medical practitioner who is not legally represented had not given “any adequate preparation” for a hearing.
Legal representation and inadequate preparation
[58] These alleged errors are in paragraphs 3.11 and 9.3 of the Tribunal’s decision (set out in paragraph [27] above). It is unnecessary to add to what I have already said about these errors, save in relation to costs, which I will do in dealing below with the award of costs.
Dr Wislang not a medical practitioner
[59] This alleged error is in paragraph 3.12 of the Tribunal’s decision. That criticised Dr Wislang for appearing not to have given any thought to the jeopardy in which he placed pharmacists and drug companies who filled his prescriptions in the belief that he was legally entitled to obtain drugs and medicines. Dr Taylor’s submission was that, in each of the Medicines Act 1981, the Misuse of Drugs Act 1975 and the Medical Practitioners Act 1995 “medical practitioner” is defined as a person registered as a medical practitioner under the Medical Practitioners Act, and Dr Wislang was so registered. Thus, by prescribing and obtaining drugs and medicines, Dr Wislang was not putting pharmacists and drug companies in jeopardy. I reject that argument. The scheme of the relevant Acts is to proscribe dealing in (i.e. sale or supply of) drugs and medicines save by persons expressly authorised by the Acts. Those persons include a “medical practitioner” defined as meaning a person registered as a “medical practitioner” under the Medical Practitioners Act 1995. In the Medicines Act there is an initial reference to a “practitioner”, but the scheme of that Act is not materially different. The emphasis is on persons entitled to practice medicine. For example, s 8 of the Misuse of Drugs Act 1975 exempts from the ss 6 and 7 prohibitions upon dealing with, possessing and using controlled drugs:
“. . . a medical practitioner . . . acting as such in the course of his or her practice . . .”
[60] In the Medical Practitioners Act 1995 the entitlement of a medical practitioner to practise is determined, not just by registration, but by registration and the holding of a current practising certificate: s 9 of the Act.
[61] Dr Taylor’s interpretation entirely ignores s 9. That cannot be correct. Prescribing and administering drugs and medicines is part of the practice of medicine. Unarguably, the pharmacists and drug companies who filled Dr Wislang’s prescriptions or supplied him with medicines believed that he was entitled to practice medicine. Equally unarguably, in prescribing and obtaining drugs and medicines he so held himself out. Dr Taylor’s interpretation would allow persons not entitled to practice medicine (even though they might be registered medical practitioners) to prescribe and obtain drugs and medicines. I do not interpret the Acts as having that legislative intent.
Tribunal misdirecting itself as to its reasons for re-amending the charge
[62] The reasons given in paragraph 3.16 of the Tribunal’s decision for amending the charge do not accurately reflect those contained in its detailed minute of 4 November. This part of Dr Wislang’s argument succeeds. Dr Taylor accepted that its relevance was to the costs which the Tribunal ordered Dr Wislang to pay.
Erroneous award of costs
[63] My reading of the Tribunal’s decision is that it blamed Dr Wislang for not:
[a] Making at the start of the 7 October hearing the points he subsequently made in his communications to the Tribunal between 11 October and 8 November i.e. primarily, that the amended charge was invalid (para 9.3 of the decision).
[b] Being properly prepared and organised to meet the charge (even in its amended form) on 7 October, so that “the hearing could have been completed quite comfortably within the single day originally allowed” (para 9.7).
[64] That allocation of blame fed into the Tribunal’s award of costs, although it took into account Dr Wislang’s submission “that a large proportion of the total costs incurred had occurred as a result of the CAC’s amending the charge”.
[65] I do not think that allocation of blame is fair. Dr Wislang came to the 7 October hearing ready to make submissions as to penalty in respect of the charge as originally framed, to which by letter he had earlier pleaded guilty. The hearing went off when it was found that he had not appreciated the gravamen of the amended charge - that he was in peril of being struck off - and was not ready to deal with that. I accept that he ought to have paid attention to that charge and ought at least to have appreciated that it put him in jeopardy of being struck off. But beyond that I see difficulties.
[66] If the Tribunal is blaming Dr Wislang for not raising the invalidity of the amended charge at the start of the 7 October hearing, then I do not think that is fair. The amended charge was laid by the CAC, upon the advice of its legal counsel. The Chair of the Tribunal was a lawyer. When neither of them appreciated that the amended charge was invalid, Dr Wislang (a layman) can hardly be criticised for not appreciating the invalidity.
[67] If the Tribunal was contemplating that the hearing could and should have proceeded to a determination on 7 October, then that hearing was presumably of the amended, invalid charge. That would result in determinations which must be treated as invalid.
[68] Perhaps what the Tribunal is saying is that had a proper (i.e. valid) charge been laid against Dr Wislang and had he pleaded guilty to it the disciplinary proceeding could have been concluded in a day. But that is not what happened. A valid charge was not laid against Dr Wislang (or rather it originally was, but was then amended to an invalid charge, and had to be amended back again) and the hearing did not take just one day. And I think that blame for the invalidity and the consequent blow out in hearing time does not lie with Dr Wislang.
[69] Further, I do not think the Tribunal’s decision acknowledges that the invalidity was only detected and corrected as a result of Dr Wislang’s submissions - his series of communications which the Tribunal’s decision described as a “deluge”.
[70] Perhaps in acknowledgment of these difficulties, Mr McClelland submitted that the appropriate way of correcting such errors was through appeal against the Tribunal’s costs order, initially under s 116 to the District Court, with a further right of appeal under s 121 to this Court. Mr McClelland pointed out that Dr Wislang had appealed to the District Court under s 116, and that that Court had dismissed his appeal in its decision delivered on 27 April 2000. He pointed out that Dr Wislang had not appealed further.
[71] Mr McClelland’s submission goes to the heart of what judicial review is all about. His argument is essentially that, if the Tribunal’s costs decision was wrong in point of law, then the remedy was appeal, not judicial review. He is right. Judicial review is concerned not with the merits or correctness (whether in fact or in law) of a decision, but with the manner in which that decision was made: Fraser v State Services Commission [1984] 1 NZLR 116 at 127 (CA). Ironically, rather the same point is made by Speight J in Wislang v Medical Practitioners Disciplinary Committee & Ors [1974] 1 NZLR 29 at 44 (in which Dr Wislang, at a much earlier stage in his career, challenged the medical disciplinary authority).
[72] I accept Dr Taylor’s submission that the Tribunal’s award of costs is erroneous. But Dr Taylor’s complaints are not as to the manner in which the Tribunal made its decision, but as to the correctness of the decision itself. He does not complain that Dr Wislang did not have a full and fair opportunity of making submissions about costs, nor is any other complaint about the Tribunal’s decision making process in relation to costs advanced.
[73] Thus, Dr Wislang’s challenge to the Tribunal’s award of costs cannot, in this application for judicial review, succeed.
Third cause of action - Council’s decision of 20 September 2000 imposing conditions on Dr Wislang’s annual practising certificate
Competence
[74] The Council’s 20 September 2000 decision resolving to issue Dr Wislang with an annual practising certificate subject to two conditions includes, in its reasons:
“4.3 A medical practitioner’s competence includes not only whether a doctor is practising safely and has an acceptable level of knowledge and skills (including procedures and communication) but also the doctor’s attitudes and judgement (I enclose a competence review booklet distributed by the Medical Council for your reference).”
[75] Having taken me exhaustively through every provision in the Act referring or relating to competence, Dr Taylor submitted that it was limited to clinical competence.
[76] I do not accept that submission. For example, a doctor who had the attitude that all wounds and illnesses should be left to heal or cure naturally, untreated, would not be competent to practise medicine. A doctor who lacked any ability to judge or assess, would be equally incompetent. Section 62 of the Act, for the purpose of examining or improving the competence of medical practitioners to practise medicine, empowers the Council to require a medical practitioner holding or applying for a practising certificate to complete a competence programme involving examination, training, practical experience, instruction, examination of clinical records or:
“(f) Anything else that the Council considers appropriate.”
[77] Whilst I accept Dr Taylor’s submission that anything prescribed by the Council would always be subject to review by the Court in terms of its reasonableness, that provision leaves the definition and bounds of competence very much to the Council. And as the Council is the governing body of the medical profession that is entirely appropriate. This first aspect of Dr Wislang’s challenge to the Council’s decision fails.
Reliance on Tribunal’s decision
[78] I have already dismissed the challenges to those parts of the Tribunal’s decision referred to and relied upon by the Council, and I therefore see no reviewable error in the Council taking into account those parts of the Tribunal’s decision.
Dr Wislang’s lack of overall ability to organise his affairs
[79] This challenge focuses on the following paragraph in the Council’s reasons:
“4.7 You have demonstrated to the Council a lack of overall ability to organise your affairs. You have failed on a number of occasions to notify Council of your change of address, you have failed to make arrangements with the MPDT to pay the costs awarded against you in December last year and when asked by the President where you intended to work from with your APC you advised that that was yet to be determined.”
[80] Dr Taylor made detailed submissions about this. First, he submitted that in none of the material the Council said it relied upon was there any reference to notification of change of address. Secondly, he submitted that Dr Wislang had notified a change of address only once, by telephone on 26 April 1993, and that the Council had thereafter misinterpreted his writing of letters to the Council from a different address as constituting a formal notification of change of address. Thirdly, he submitted that Dr Wislang had not had any notice that an adverse finding might be made against him because he had not paid the costs awarded against him by the Tribunal in December 2000. Lastly, he submitted that no reasonable Council could conclude that, for a medical practitioner to apply for a practising certificate without having a proposed place of practice, indicated an overall lack of organisational ability.
[81] Without descending into the minutiae of the argument supporting these submissions, I consider that there may well be something in some of them, for instance, in Dr Taylor’s second submission about notification of change of address. The evidence is that, by telephone on 26 April 1993, Dr Wislang formally notified a change of professional address to 38 Megarry Avenue, Manly. But thereafter he wrote to the Council, and advertised his professional services, from 58 Symonds St, Auckland. The Council on 21 May 1993, when issuing him with a provisional certificate of registration giving his address as 58 Symonds St, requested him to return an enclosed postcard if his address differed from 58 Symonds St. Nothing came back from Dr Wislang. Strictly, Dr Wislang may be on good ground in relation to notification of his professional address.
[82] But I do not intend descending into the detail of the argument on this aspect. Even if none of the reasons mentioned by the Council in paragraph 4.7 of its decision is valid, there existed plenty of material justifying the Council in imposing the condition that Dr Wislang nominate a general overseer who agreed to be his professional mentor. That material is summarised in paragraphs 4.4 to 4.6 of the Council’s decision. I regard the three matters referred to by the Council in paragraph 4.7 as make weights, and see it as significant that they were the last the Council referred to.
[83] Dr Taylor rightly warned me of the dangers of leaving a decision standing when part of its basis had been exposed as erroneous. He supported this by contrasting the approaches of the Court of Appeal and Privy Council in Royal Australasian College of Surgeons v Phipps [ 1999] 3 NZLR 1 and Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 respectively. I am alive to that danger. But I am not in doubt that the two conditions imposed by the Council on Dr Wislang’s practising certificate were well justified without any reliance upon the matters referred to in paragraph 4.7 of its decision.
[84] It is thus unnecessary for me to consider Mr McClelland’s submission that the remedy sought by Dr Wislang in his third cause of action was futile or academic. That was because the condition objected to by Dr Wislang would anyway have been imposed on him pursuant to s 20(2) of the Act (because he had not held a valid practising certificate for five consecutive years prior to July 1996), and further because oversight for all practitioners pursuant to s 20 becomes mandatory in a few days time, from 1 July 2001.
Discretion
[85] As none of Dr Wislang’s three causes of action succeeds, no decision is required as to whether the discretionary remedies sought should be granted, and if so in what way. I add that, even had all causes of action succeeded, I would have been most reluctant to quash all parts of the Tribunal’s two decisions and the Council’s one decision, save for the censure imposed by the Tribunal and the first condition of practice (which Dr Wislang did not object to) imposed by the Council. Dr Taylor submitted that such a result was a fair outcome in all the circumstances. I would not have been able to reconcile that with his submission that the decisions of the Tribunal and Council were marred by numerous and cumulative errors of law, or with the approach of the Privy Council in Phipps. I am not able to see how vitiated findings and decisions of the Tribunal and Council could be separated from other findings and decisions so that the outcome advocated by Dr Taylor represented a fair result. I think quashing all the findings and decisions of the Tribunal and Council would have been unavoidable, leaving the whole matter to have been gone into afresh.
Result
[86] None of Dr Wislang’s three causes of action has succeeded. His application for judicial review is accordingly dismissed.
Costs
[87] In the normal course the first and third defendants would be entitled to their costs against Dr Wislang. However, I reserve costs in the hope that my unease over the Tribunal’s award of costs against Dr Wislang might be accommodated in an agreement as to the costs of this proceeding, perhaps that there should be no order.
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