Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand [2017] NZHC 2887 (23 November 2017)

Last Updated: 8 December 2017

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-488-000066 [2017] NZHC 2887

UNDER	Section 106(2)(b) and (d) of the Health Practitioners Competence Assurance Act, and Schedule 1, s 5(3) of the Health Practitioners Competence Assurance Act 2003
BETWEEN	LYNDA MARIE EMMERSON Appellant
AND	A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND Respondent

Hearing:	23 November 2017
Counsel:	C Muston for Appellant DR La Hood and AR Garrick for Respondent
Judgment:	23 November 2017

JUDGMENT OF DOWNS J (Interim name suppression)

This judgment was delivered by me on Thursday, 23 November 2017 at 11.15 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

C Muston, Whangarei.

Luke Cunningham Clere, Wellington.

EMMERSON v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 2887 [23 November 2017]

[1] The background to this judgment is in mine of 20 November 2017.¹ In brief, the New Zealand Health Practitioners Disciplinary Tribunal found Dr Lynda Emmerson committed professional misconduct: prescribing drugs of dependency to people close to her; using methamphetamine and cannabis; and attempting to mislead the prosecuting authority—including in writing—about her drug use. Dr Emmerson appealed in relation to both liability and penalty—the Tribunal ordered cancellation of her registration. I dismissed the appeal.

[2] Dr Emmerson may bring an application for leave for a second appeal to the

Court of Appeal. She seeks interim name suppression.

[3] The parties characterised the application as a stay in relation to my conclusion there was no basis for name suppression, and should lapse. This characterisation is inapt. The Tribunal declined to grant Dr Emmerson permanent name suppression. However, it granted suppression for a month to allow her to lodge an appeal to this Court and here, seek interim orders. An order was made by consent on 23 June 2017. Dr Emmerson did not appeal the Tribunal’s conclusion in relation to name suppression. And at the hearing of the appeal, Dr Emmerson sought name suppression if, and only if, I allowed the appeal in relation to either liability or penalty. Against this background, the application is a fresh one for interim name suppression. But nothing turns on this.

[4] Mr Muston contended Dr Emmerson should have name suppression to protect her position in the interim. He observed other medical professionals have, on occasions, been the beneficiary of interim orders, and Dr Emmerson should be treated “fairly and equally”. Mr Muston was not able to identify specific grounds for suppression beyond that Dr Emmerson will experience “shame” if her name is published, and she has been in a “terrible situation” through and in consequence of the medical disciplinary proceedings.

[5] Mr La Hood resisted the application on the bases the putative prejudice was generic, and the presumption of open reporting had not been displaced. Mr La Hood

_{also observed Dr Emmerson had chosen to bring defamation proceedings against two}

¹ Emmerson v A Professional Conduct Committee [2017] NZHC 2847.

doctors in connection with her earlier practise as a psychiatric registrar at Whangarei

Hospital, which were live before Davison J in Whangarei.

[6] I am satisfied the application should be dismissed for six inter-related reasons.

[7] First, disciplinary proceedings in a medical context carry a presumption of open reporting.² So too related appeals.³ It follows the public is entitled to know about this case, including Dr Emmerson’s identity, unless cogent reasons exist for suppression.

[8] Second, the fact Dr Emmerson is a professional who has fallen from grace is not, by itself, sufficient. Shame, even ignominy, can follow a conclusion a professional has committed misconduct. But as the Court of Appeal has observed, professionals do not enjoy a different standard of justice from anybody else.⁴

[9] Third, while Mr Muston is correct examples of interim name suppression in relation to medical professionals can be readily identified, that is only because the circumstances of those cases required suppression. And, more particularly, because the individuals concerned could identify particular reasons for suppression. Fairness and equality do not justify suppression unless Dr Emmerson can demonstrate suppression is justified with reference to her circumstances.

[10] Fourth, no reasons have been identified for interim name suppression beyond the generic. Indeed, Mr Muston responsibly observed there was little about Dr Emmerson’s personal circumstances he could advance in support of the application.

[11] Fifth, Dr Emmerson may not appeal to the Court of Appeal as a matter of right. That Court’s leave is required. It may be granted only if that Court is satisfied

² _{Health Practitioners Competence Assurance Act 2003, s 95.}

³ _{Y v Attorney-General [2016] NZCA 474.}

⁴ Y v Attorney-General, above n 3, at [32].

the case raises a matter of general or public importance, or Dr Emmerson has suffered or may suffer a miscarriage of justice.⁵

[12] Sixth, Dr Emmerson accepts engaging in the behaviour that led to cancellation of her registration. To elaborate, Dr Emmerson accepts she prescribed drugs of dependence to those close to her; regularly used methamphetamine and cannabis; and misled the prosecuting authority. The only factual conclusion Dr Emmerson contests is whether she intentionally misled the authority. Dr Emmerson’s case is that her acknowledged misconduct ought not to be considered professional misconduct, or have resulted in cancellation of her registration as a doctor. Mr Muston said the latter is likely to be the issue ventilated, if leave is granted, to the Court of Appeal.

[13] I consider there is a high public interest in these facts being known irrespective of whether an appellate Court ultimately concludes the penalty was too severe. Equally, any “shame” vis-à-vis publication of name is logically referable to Dr Emmerson’s admitted conduct irrespective of whether it should have led to cancellation of registration.

[14] The application is dismissed.

...................................

_{Downs J}

5. Health Practitioners Competence Assurance Act, s 113(4) and Criminal Procedure Act 2011, s 303(2).