Vatsyayann v Professional Conduct Committee of the New Zealand Medical Council [2012] NZHC 1138 (25 May 2012)

Last Updated: 20 June 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-511
CRI-2011-419-968 [2012] NZHC 1138

UNDER Section 106 of the Health Practitioners

Competence Assurance Act 2003

IN THE MATTER OF an appeal against a determination of the Health Practitioners Disciplinary Tribunal Decision Number 335/Med10/152P

BETWEEN SURESH KUMAR VATSYAYANN Appellant

AND PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND MEDICAL COUNCIL

Respondent

Hearing: 26, 27 and 28 March 2012

Appearances: J A Hope for the Appellant

M R Heron and R H Carajannis for the Respondent

Judgment: 25 May 2012

_{RESERVED JUDGMENT OF PRIESTLEY J}

This judgment was delivered by me on 25 May 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel:

J A Hope, Barrister, Hamilton. Email: [e-mail]

M R Heron, Russell McVeagh, Auckland. Email: [e-mail]

_{R H Carajannis, Russell McVeagh, Auckland. Email: [e-mail]}

VATSYAYANN V PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND MEDICAL COUNCIL HC HAM CRI-2011-419-511 [25 May 2012]

CONTENTS

Para

Background 1

Right of appeal 8

What did the Tribunal do? 11

Penalty hearing 32

Discussion 43

Legal issues raised by appellant 44

Appellant’s culpability 52

Disposition of appeal 70

Charges 70

Penalty 74

Result 85

Appendix

Background

[1] The appellant is a medical practitioner who practised in Hamilton. At the relevant time he was in charge of a medical practice called the Family Clinic. The appellant’s practice attracted much interest and attention because it offered “free” medical consultations and treatment. Aspects of the appellant’s conduct resulted in disciplinary proceedings being brought against him under the Health Practitioners Competence Assurance Act 2003 (the Act).

[2] These charges were heard by a panel of the Health Practitioners Disciplinary Tribunal (the Tribunal).1 The relevant panel comprised Mr B A Corkill QC as Chair and four members, three of whom were medical practitioners.2 The disciplinary hearing in Hamilton occupied nine days.

[3] The appellant was not legally represented before the Tribunal. He had, however, the assistance of his daughter, Ms J Foot. Although Ms Foot was described as a McKenzie Friend, her role seems to have expanded well beyond the restrictions normally placed on such a person. She made submissions, cross-examined extensively, and also appears to have given evidence.

[4] The Tribunal was further assisted by Mr J Upton QC of the Wellington bar. Mr Upton was appointed pursuant to s 73 of the Act and effectively acted as a legal assessor or amicus. His appointment was undoubtedly prudent given that the appellant faced serious charges and was bereft of legal advice.

[5] In a comprehensive and careful decision released on 16 March 2011, the Tribunal found that the charges of professional misconduct against the appellant had been established.3 It called for submissions on penalty and timetabled those

_{submissions and any supporting evidence.}

1 _{Established under s 84 of the Act.}

2 _{Section 88 sets out the required constitution of the Tribunal.}

3 Decision number 355/Med10/152P.

[6] The Tribunal reconvened in Hamilton on 21 April 2011 to consider penalty. The respondent had been given repeated notifications of the hearing date. He failed to appear. He had, instead, sent two emails to be placed before the Tribunal. The substance of these emails was that he had no counsel; was physically unwell; had no money for paper; that the case against him was “unjust to the core”; and that the Tribunal should give him “maximum punishment” that being the Tribunal’s legal duty.

[7] The appellant has exercised his statutory rights of appeal and challenges both

the Tribunal’s findings against him and the penalties it imposed.

Right of appeal

[8] A general right of appeal to the High Court from findings and orders of the

Tribunal is contained in s 106(2) which relevantly provides:

106 Rights of appeal

...

(2) A person may appeal to the High Court against the whole or any part of—

(a) a finding under section 100 in respect of the person; or

(b) an order made by the Tribunal under section 92(4) or section

101 in respect of the person; or

...

[9] The right of appeal from s 100 findings covers the Tribunal’s decisions under s 100(1)(a) and (b) that a practitioner has been guilty of professional misconduct for acts or omissions which amount to malpractice or negligence, or has been guilty of professional misconduct because of acts or omissions likely to bring discredit to (in this case) the medical profession. Appeals made under s 101 relate to penalties imposed by the Tribunal.

[10] Section 109(2) in combination with r 20.18 of the High Court Rules effectively grants to the appellant an appeal by way of rehearing. The powers of this Court, under s 109(3), are the normal powers to confirm, reverse, or modify the

Tribunal’s decision or orders. There is an additional power conferred by s 111(1) to direct the Tribunal to reconsider any aspect of its decisions or orders, coupled with the power of s 111(2)(b) to give directions to assist in that reconsideration.

What did the Tribunal do?

[11] Four charges were involved. The first, which occupied by far the greatest period of time both before the Tribunal and this Court, related to the enrolment of patients of the Family Clinic without their informed consent. A large number of patients were involved. The charge arose out of the online enrolment requirements of the publicly funded healthcare scheme under which medical practitioners have to enrol patients to receive per capita funding.

[12] The second charge related to consultations which allegedly took place in the doctor’s surgery whilst another patient was behind a curtain. These arrangements were allegedly inadequate to protect patient privacy.

[13] The third charge related to a number of procedures carried out by the appellant’s wife, Subash Vatsyayann. Mrs Vatsyayann had trained and qualified as a dentist in India. She was not registered in New Zealand as a nurse or enrolled nurse. She was, however, trained in New Zealand and was entitled to practise as a phlebotomist (a technician who extracts blood for medical purposes).

[14] The subcategories of charges relating to Mrs Vatsyayann were: (a) Carrying out cervical smears on patients.

(b) Removing an inter-uterine device. (c) Giving vaccinations to patients.

(d) Giving the contraceptive Depo-Provera injections to patients.

(e) Conducting herself as, or representing that she was a qualified nurse.

[15] The final charge alleged that the appellant kept inaccurate clinical records which effectively showed that he had provided the treatment or procedures which in fact had been provided by his wife.

[16] The Tribunal found that all the charges against the appellant were proved to its satisfaction.

[17] Later in this judgment I detail briefly the enrolment procedures which the Family Clinic had to follow before it could receive primary healthcare funding on a capitation basis.4 The gravamen of the charges against the appellant was, as Mr Heron correctly submitted, that patients were enrolled by the Family Clinic without their consent to the process being obtained. I signal at the outset that there can be no serious dispute that enrolments of Family Clinic patients indeed occurred without informed consent. More problematic is how this happened, whether the appellant

was directly involved, and whether the enrolments were motivated by some dishonest purpose.

[18] The Tribunal set the scene. In August 2007 the Waikato District Health Board received complaints from patients alleging that they had been enrolled at the Family Clinic without their consent. An audit was carried out. Shortly thereafter the Ministry of Health undertook a review of relevant Primary Health Organisation (PHO) registers.5 Some unusual information was unearthed. The Family Clinic’s PHO register had risen from 2,687 patients in October 2005 to 5,020 patients in July

2007. On one day (20 July 2005) 269 patients had been enrolled, and on the same day, some 274 patients had reported consultations at the clinic. An audit followed, as did a search warrant. Subsequent analysis suggests that some 1,873 patients on the PHO register lacked supporting enrolment forms containing their consents.

[19] Enrolment requirements at that time were set out in the Ministry of Health’s

“Enrolment Requirements for Primary Health Organisations Version 2.2” document

_{published in November 2004. Leaving aside (because they have little relevance) the}

4 Additionally the appendix to this judgment describes the enrolment procedures and funding scheme as it applies generally to health providers.

5 The Family Clinic at the relevant time was a member of the Toiora PHO which it had joined in approximately October 2005.

position of patients on the books of the medical practice before the new funding arrangements came into force6 and transitional arrangements, the key requirement of the enrolment process was the consent and agreement of an enrolled patient. The patient had to indicate to the health provider that she wanted the PHO as her usual provider for primary care services; agree to certain details being included on the enrolment register; and, importantly, agree to the enrolment process by signing an

enrolment form.

[20] The Professional Conduct Committee, which prosecuted the appellant before the Tribunal, presented a selection of 45 patients (from what I infer was a potentially larger number) who fell into various categories:

(a) Four patients who had never been to the Family Clinic although a family member had visited and was enrolled.

(b) Four patients who had died before July 2005 (informed consent clearly being an impossibility).

(c) Twenty patients who had visited the clinic once but who never returned and had never signed an enrolment form.

(d) Four patients who were patients of a previous doctor who had operated the clinic under a different name but who had never visited the Family Clinic.

(e) Three staff members of the Family Clinic or a staff member’s spouse.

(f) Three patients who had never attended the Family Clinic at all.

(g) Three patients who had received a ’flu vaccination from the appellant at their place of work but not at the Family Clinic.

(h) Four patients who had attended a seminar at the Family Clinic but had never attended for any medical procedure.

[21] The Tribunal was satisfied that, in respect of 44 patients of the 45, enrolment had occurred without the patient’s knowledge and informed consent. The Tribunal went on to consider a number of explanations or defences the appellant raised. These included IT problems, errors on the part of the PHO, computer operator errors and mistakes, the absence of comparators with other health providers, and the general complexity of what was called a “bewildering” process. The Tribunal was satisfied that none of these defence points had been established. They did not explain the crucial lack of an informed consent.

[22] As best as counsel and I could assess, of the 45 patients covered by the charge of enrolment without signed consent, 23 were confirmed enrolments before 1

October 2005, of which 19 were registered under the log in of one Family Clinic staff member on 22 July 2005. The other 22 patients were all enrolled after

1 October 2005.

[23] On the second charge relating to patient privacy, the Tribunal referred to evidence which established that the appellant consulted his patients in a large consulting room containing his desk. The far end of the consulting room was partitioned in a temporary fashion, initially by a cupboard and later (after a complaint) by a curtain. The Tribunal referred to the evidence that it heard from various patients, including the patients on whom Mrs Vatsyayann had performed smear tests, who were behind the curtain whilst the appellant and another patient were on the far side of the curtain.

[24] The Tribunal considered that there was “overwhelming evidence” that this was a regular practice which had continued over a period of years. It was satisfied the appellant often saw patients at his consultation desk whilst procedures, sometimes intimate, were performed at the other end of the room behind “only a curtained off area”.

[25] On the third charge, of allowing an unregistered or unqualified person to provide treatments or conduct procedures, that person being Mrs Vatsyayann, the Tribunal considered the evidence it had heard. It was satisfied that Mrs Vatsyayann had performed cervical smear tests on three patients between 31 July and 19

December 2007 and that she had further carried out cervical smears for one or more patients of unknown identity.

[26] The Ministry of Health’s National Screening Unit (NSU) had set out practice standards for cervical smear-takers in New Zealand. The smear-taker was required to be a registered health professional or a lay smear-taker who had completed an NZQA Unit Standard course. Mrs Vatsyayann did not qualify under either head. Furthermore the NSU had written to the appellant in June 2008, April 2009, and May

2009 asking for an explanation on the topic of cervical smears being administered by an unqualified person. The appellant did not reply and failed to provide any such explanation.

[27] The Tribunal was further satisfied that Mrs Vatsyayann had given vaccinations to the children of seven witnesses and to other unnamed patients. In terms of the Ministry of Health’s Immunisation Handbook (2006) Mrs Vatsyayann did not hold the necessary qualification to administer vaccines which were prescription medicines. The Tribunal further considered whether Mrs Vatsyayann’s Indian dental qualifications might be considered the overseas equivalent of a medical background (this line of inquiry being legitimately pursued in relation to Ministry of

Health standing orders and IMAC7 examination passes). The Tribunal concluded

Mrs Vatsyayann did not qualify. This aspect was not pursued by Mr Hope on appeal.

[28] The Tribunal was also satisfied on the evidence it heard from witnesses that two patients had received Depo-Provera contraception injections from Mrs Vatsyayann. One patient, in a procedure she described as “really rough”, had an inter-uterine coil removed by Mrs Vatsyayann in November 2007.

[29] On the final particular of the charge against the appellant relating to his wife – allowing her and other staff members to represent that she was a qualified

nurse – the Tribunal referred to the evidence of many witnesses who presumed that, because of the procedures and the nature of the work being carried out by Mrs Vatsyayann, she must have been a nurse. Furthermore there was evidence she was regularly referred to as a nurse by staff members.

[30] There is, in my view, an element of duplicity or overlap with this aspect or particular of the charge relating to Mrs Vatsyayann. Patients attending a doctor’s practice would normally assume that a woman in a position of some authority and carrying out certain procedures would fit the generic description of “nurse” without turning their minds to the technical aspects of a qualification. Furthermore the evidence before the Tribunal suggested that a considerable number of the Family Clinic’s patients were from immigrant groups whose command of the English language and knowledge of medical hierarchies would be poor. The fact that Mrs Vatsyayann was represented as being a “nurse” does not in my view add significantly to the culpability of the other more serious aspects of this charge.

[31] The final charge related to inaccurate clinical notes. There was clear evidence, which the Tribunal accepted, that the clinical notes entered on the records of patients to whom smear tests had been administered, falsely and misleadingly stated that a smear test had been carried out by the appellant and that his wife was a mere chaperone.

Penalty hearing

[32] The Tribunal reconvened in Hamilton on 21 April 2011 to consider the appropriate penalties to impose on the appellant. As already indicated8 the appellant did not appear and instead wrote a letter suggesting that the Tribunal should impose “maximum punishment”. A person appearing before a professional disciplinary body who chooses to absent himself from a hearing or who makes no submissions will often be hard put to challenge the imposed penalty on appeal.9

[33] The Tribunal’s careful and considered decision, released on 10 May 2011,10

made the following orders:

(a) The appellant’s registration as a medical practitioner was cancelled.

(b) The appellant was censured.

(c) The appellant was ordered to pay $256,000 in costs comprising:

(i) The costs and disbursements of the Professional Conduct

Committee of $185,000.

(ii) The Tribunal’s costs and disbursements of $71,000.

[34] So far as the costs orders were concerned, the Tribunal correctly addressed a number of authorities and principles. These included that professional groups should not be expected to bear all the costs of a disciplinary regime and that members of the profession who appeared on disciplinary charges should make a proper contribution towards the costs of the inquiry and a hearing;11 that costs are not punitive;12 that the

practitioner’s means, if known, are to be considered;13 that a practitioner has a right

to defend himself and should not be deterred by the risk of a costs order;14 and that in a general way 50% of reasonable costs is a guide to an appropriate costs order subject to a discretion to adjust upwards or downwards.15 The Authority went on to consider High Court judgments where that standard had been applied subsequently, and where adjustments were made when GST had been wrongly added to costs orders.

[35] In the event the Tribunal, although extremely concerned by the “insufficient focus on real issues at the hearing” which had in its view led to witnesses being

10 _{Decision number 374/Med10/152P.}

11 G v NZ Psychologists Board HC Wellington CIV-2003-485-2175, 5 April 2004; Vasan v Medical

_{Council of New Zealand HC Wellington AP43/91, 18 December 1991.}

12 _{Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 (HC) at 195.}

13 _{Kaye v Auckland District Law Society [1998] 1 NZLR 151.}

14 _{Above n 11.}

15 Cooray v Preliminary Proceedings Committee HC Wellington AP 23/94, 14 September 1995 (Doogue J).

called unnecessarily and to unjustified protraction of the hearing, considered the “correct approach” was to order 50% of the combined total of the costs of the Professional Conduct Committee and the Tribunal, exclusive of GST. In arriving at that figure the Tribunal made deductions of $20,300 because it considered there might have been some duplication arising out of a separate admissibility hearing.

[36] The Tribunal’s approach to imposing penalty was focused and careful. I am told from the bar that the costs award made against the appellant is the highest award ever made in New Zealand by a Tribunal against a medical practitioner. There can be no quarrel, however, with the Tribunal’s arithmetic or methodology. The only piece of information it lacked (because he failed to appear) was the appellant’s financial position and means.

[37] The Tribunal, before imposing penalties, referred to the various principles it had to consider and the function of disciplinary proceedings. These included (there being no need to recite the authorities) the protection of the public, maintenance of professional standards, punishment of the practitioner, and, where appropriate, the practitioner’s rehabilitation. It referred to the helpful judgment of Keane J in A v Professional Conduct Committee:16

[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’.17 Fifthly, and perhaps only implicitly, suspension ought not to be imposed simply to punish.

[82] Finally, the Tribunal cannot ignore the rehabilitation of the practitioner: B v B (HC Auckland, HC 4/92, 6 April 1993) Blanchard J. Moreover, as was said in Giele v The General Medical Council [2005] EWHC 2143, though ‘... the maintenance of public confidence ... must outweigh the interests of the individual doctor’, that is not absolute - ‘the existence of the public interest in not ending the career of a competent doctor will play a part.

[38] The Tribunal also referred to the Privy Council judgment of Dad v General Dental Council,18 followed by Randerson J in Patel v The Dentists Disciplinary Tribunal19 to the effect that the Tribunal had to consider carefully alternatives short of removal from the Register and explain why lesser options (the consequences of removal inevitably being severe) were not appropriate.

[39] From that starting point the Tribunal moved to the penalties it imposed in the following way:

25. The first particular of the charge related to the enrolling of patients without patients being aware of the enrolment and/or without patients giving informed consent in respect of that enrolment (the particular being upheld in respect of patients). The Tribunal was particularly concerned that the conduct had occurred over a long period of time; it had resulted in adverse consequences for patients; and it had resulted in monies being received by Dr Vatsyayann which he was not justified in receiving from public source. This is a particularly serious conclusion. As the Tribunal stated in Pellowe a clear message must be sent to the profession that offences of dishonesty against HealthPAC (or Sector Services) will not be tolerated and will be treated seriously and with significant penalty. This particular, in and of itself, would have justified cancellation.

26. The second particular related to a breach of patient privacy. Again over an extended period (June 2006 to April 2009) Dr Vatsyayann had permitted or was responsible for allowing consultations to occur with a patient to be undertaken in the same room as another patient, thereby breaching, or failing to adequately or properly protect, the privacy of the patients concerned. There was a complaint in 2006 when the matter was brought specifically to Dr Vatsyayann’s attention, yet inadequate steps were taken thereafter. Again, this practice related to multiple patients. The breach was particularly serious where intimate examinations were involved. And a final aggravating factor, in relation to this particular, is that Dr Vatsyayann denied the practice when it was raised with him in the context of inquiries by the PCC.

27. The third particular relating to allowing an unregistered and/or unqualified person to provide treatment or conduct clinical procedures. These included the carrying out of cervical smears, the removal of intrauterine devices, the giving of vaccinations, the giving of depo-provera injections and allowing Mrs Vatsyayann to represent that she was a nurse. As the Tribunal noted in its decision there was obviously a range of procedures which Mrs Vatsyayann was not qualified or authorised to perform; especially serious were the intimate procedures; all medical practitioners should be well aware of the issues relating to the proper administration of smears, and the fact that the relevant regulatory requirements are easily accessible on the Ministry of Health website. The Tribunal was very concerned that there was no evidence at all that Dr

Vatsyayann had required Mrs Vatsyayann to undertake the necessary training for lay smear taking, until it was too late; and when it was too late he did not instruct her to cease taking smears. The various procedures were performed on multiple patients and over a significant period of time. The letter from the Ministry of Health in July 2008 should have alerted Dr Vatsyayann to the need to deal with compliance issues; he should have ensured that Mrs Vatsyayann did not continue these procedures until the issue had been addressed. He did not. This was a very serious situation.

28. The final particular related to Dr Vatsyayann being responsible for the clinical records of patients which were inaccurate, in that the records in question showed Dr Vatsyayann had provided treatment or performed clinical procedures when he had not. The Tribunal considered this conduct amounted to negligence, and brought discredit to the profession; and that the undertaking of multiple entries of this kind was misleading and deceptive.

29. The totality of these breaches amounted to a significant pattern of offending in a number of areas of practice, and over a significant period of time.20

[40] The Tribunal considered that the appellant’s conduct was “grave”. It had no confidence that the pattern of offending which he had exhibited would not be resumed if he was merely suspended. With reference to the factor mentioned by Keane J in A v Professional Conduct Committee21 the Tribunal had no confidence that the appellant would be “amenable to cure”.

[41] In the absence of any submissions from the appellant relevant to mitigation the Tribunal fell back on to the various defences which he had raised. It concluded:

33. These various explanations were considered in the substantive decision, and were rejected. The short point is that the regulatory requirements of the medical profession are essential in order to maintain public health and safety, and proper standards. Medical practitioners do not have a choice of not complying with the acceptable standards simply because they believe they do not need to comply with them, or that the end justifies the means. The Tribunal has carefully considered all the arguments that were raised for Dr Vatsyayann at the hearing, but none of them mitigates in any meaningful way the multiple aggravating factors it has been required to consider.

34. The Tribunal is mindful that it must give a proportionate response to the conduct under consideration. In all the circumstances, the Tribunal determines that the only responsible order the Tribunal could make was that his registration be cancelled.

[42] The Tribunal additionally considered the appellant needed to be censured to send a strong message to both the appellant and the profession that “the range of breaches of this kind and across such a wide range of practising areas is simply not acceptable”.

Discussion

[43] Mr Hope’s careful and comprehensive submissions occupied approximately two thirds of this appeal’s hearing time. But ultimately, as I indicated on a number of occasions during the hearing, the major points Mr Hope raised went not to the merits or proof of the four charges the appellant faced, but rather to matters of mitigation and culpability.

Legal issues raised by appellant

[44] At the outset I deal briefly with the legal issues advanced on the appellant’s behalf. It was submitted that the Tribunal, when considering whether the charges were established, did not apply the appropriate standard of proof. That standard is effectively the civil standard as enunciated by the Supreme Court in Z v Dental

Complaints Assessment Committee,22 namely that the balance of probabilities is to be

applied flexibly according to the seriousness of the matters to be proved and the consequences of proof.

[45] Given that the Tribunal was chaired by a Queen’s Counsel and that at the outset of its decision it referred to Z and articulated the correct test, I reject that submission. Furthermore, given the nature of the charges and the evidence it heard there were effectively no obstacles to the Tribunal being satisfied to the required standard. There was no evidence to the contrary.

[46] The appellant submitted the Tribunal erred by drawing an improper adverse inference against him as a result of his failure to give evidence. An affidavit, filed in this appeal and read, states that the appellant was reluctant to give evidence because

_{his daughter, who was assisting him, threatened to walk out if he did. I reject this}

22 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [102].

submission. Nowhere in the Tribunal’s decision is there a suggestion that it weighed improperly the appellant’s failure to give evidence. Indeed it had been provided with advice on the issue by Mr Upton QC to the effect that the appellant had been informed (by Mr Upton) of the legal ramifications of him deciding not to give evidence. Again at the outset of its decision, the Tribunal recorded that the appellant understood the legal ramifications of not giving evidence. The Tribunal also referred

to Re C (a Solicitor),23 Auckland District Law Society v Leary,24 and a legal text25 all

to the effect that a practitioner cannot merely rely on the right of silence in the context of disciplinary proceedings to claim that allegations have not been proved satisfactorily.

[47] The advice given to the Tribunal by Mr Upton was that a practitioner was particularly at risk of an adverse inference in due course if the Tribunal was satisfied that a prima facie case had been established. There is an important distinction between drawing an adverse inference and placing it in the scales to satisfy a burden of proof, and an adverse inference, used perhaps slightly loosely by Mr Upton, to describe consequences which will flow from a failure to give evidence if a prima facie case is established.

[48] A reading of the Tribunal’s decision makes it abundantly clear that it reached its conclusions on the charges on the evidence alone and did not rely on any adverse inference drawn from the appellant’s failure to give evidence to push proof of the charges across the line.

[49] A further submission advanced by Mr Hope was that there was some error or impropriety in Mr Upton QC, appointed as the Tribunal’s technical adviser, giving advice to the appellant on the legal issue of his failure to give evidence. There is no substance to this point. During the hearing, the issue of whether or not the appellant was going to give evidence, and the implications if he failed to do so, were raised a number of times. Mr Heron properly submits that the Tribunal asked Mr Upton to

_{put the legal position “on the record” so that there could be no misunderstanding by}

23 _{Re C (a Solicitor) [1963] NZLR 259 (SC).}

24 _{Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985.}

25 Duncan Webb Ethics, Professional Responsibility and the Lawyer (2nd ed, LexisNexis, Wellington

2006) at 153.

the appellant of what was involved. Furthermore the transcript of the hearing26 records Mr Upton advising the Tribunal that he had told the appellant whether or not he was going to give evidence was a matter for him, and not something on which Mr Upton could advise.

[50] I am firmly of the view that, given the appellant was not represented by a lawyer before the Tribunal, it was both sensible and fair for the Tribunal to ensure the appellant (and indeed his daughter who was “advising” him) were aware of the ramifications of his failure to give evidence. This the Tribunal did and it is not to be criticised for bending over backwards in that regard.

[51] Mr Hope submitted that in respect of evidence given by two staff members (one of whom was involved in IT procedures and another who with his wife was wrongly enrolled as a patient of the Family Clinic), was for various reasons unreliable. Counsel submitted there was thus a credibility issue. I do not intend to discuss the detail of counsel’s submission. The credibility of one witness has been attacked on the basis of information concerning his involvement in non-medical matters after the Tribunal’s hearing. Questions of credibility and reliability are for the Tribunal. An assessment by a panel of five is likely to be more comprehensive than by a single member. In any event, even if the evidence from the witnesses whom Mr Hope attacked was discarded, it would make no substantial difference (other than reducing by two or three the number of wrongly enrolled patients) to the charges proved against the appellant.

Appellant’s culpability

[52] I turn now to Mr Hope’s submissions which grapple with issues of culpability, more appropriately dealt with in the appeal against the penalties imposed on the appellant.

[53] On a broad level counsel referred to three features of the appellant’s predicament. The first was, in respect of all the charges, the alleged misconduct had been carried out by others. That submission is tenable only in part. It is probably

true in respect of the PHO patient enrolment. But it cannot be true in respect of Mrs Vatsyayann’s activities (to which the appellant must have been a party), or to the falsification of the clinical notes.

[54] The second broad submission, relevant perhaps to penalty, is the high level of adverse publicity which had attended the Tribunal’s hearing and the appellant’s resulting loss of face. Mr Hope referred to a tabloid type bill board of the New Zealand Herald “Dr signed up dead for cash”.

[55] The third broad submission was that some regard had to be paid to the appellant’s ethnicity (Indian). The reason why he could not attend the penalty hearing was that he was conducting a 33 day hunger strike which Mr Hope described as a traditional high profile form of protest in India. (Mahatma Ghandi went on hunger strikes).

[56] It was wrong, submitted Mr Hope to place too much weight on the fact that the appellant, as a medical practitioner, was in charge of the Family Clinic. In October 2005 he had been an employee of the Trust which ran the clinic. He had resigned as a trustee. The PHO enrolments were easy to achieve. It was a simple online mechanism requiring a click on the “enrolment confirmed” button.27 Many staff members, as was clear from the evidence, were carrying out enrolment procedures. Online enrolment was not part of the appellant’s function.

[57] Counsel referred to a number of competency reviews which were before the Tribunal. These certainly suggest that the appellant passed muster, and indeed was regarded favourably by his reviewing peers. I note too that before his arrival and enrolment in New Zealand the appellant made significant contributions practising as a doctor in third world countries and indeed had a period of medical service with the United Nations.

[58] The patient list at the Family Clinic, submitted Mr Hope, had been correctly compiled. The names of those submitted to the PHO as enrolled patients would certainly have been entitled to the status of “registered patients” to be confirmed or

deleted over the next three years as the case may be. So, although the enrolled patient status might have been incorrect (and I note Mr Hope’s submissions of necessity avoided addressing the absence of signed consent forms) the Family Clinic was entitled to receive capitation payments for the bulk of its patients who should properly have been registered. As for the four deceased enrolled patients, those should have been detected and cleared out by data matching on the part of the Health Department.

[59] As to post-2005 enrolments, all had been confirmed by staff members. There is no evidence to support a finding that they were enrolled at the appellant’s direction or by him personally. In similar vein Mr Hope submitted the appellant accepted it was incorrect to show pre-October 2005 patients, who would have qualified as being

registered, as confirmed enrolments.28 But this error was not perpetrated by him.

Nor was it an error performed for any fraudulent or improper purpose.

[60] Turning to the charges relating to Mrs Vatsyayann, Mr Hope observed that an audit of the smears she performed indicated her performance was higher than average. With regard to the vaccinations she performed, Mr Hope submitted the Tribunal failed to acknowledge the various certificates she held and gave too much weight to issues of risk. As an Indian-qualified dentist and as a New Zealand qualified phlebotomist the risks of misadventure resulting from skin-pricks or punctures administered by her must have been minimal.

[61] On the aspect of Mrs Vatsyayann removing an IUD Mr Hope questioned whether this was a medical procedure. He also questioned the finding of the Tribunal that she had been involved in this procedure more than once, inasmuch as the evidence of the staff member might not be credible.29

[62] On the charge relating to breach of patient privacy the appellant apparently accepted those findings. Counsel pointed to various mitigating factors, such as a patient experiencing chest pains (an emergency situation justifying a breach of

privacy) and the minimal number of consultations involved. On this aspect of his malpractice the appellant was amenable to cure.

[63] In summary, Mr Hope stressed that the appellant had throughout been on a fixed salary. He consulted a large number of patients each day (125 at times) but received no bonuses. The Tribunal’s findings represented an attack on his reputation and honesty, yet he was not personally responsible for the mistaken patient enrolments. It was significant that no civil proceedings had been taken against the Family Clinic (although I note there was some agreed compromise payment).

[64] Were the matter to be remitted back to the Tribunal Mr Hope’s clear instructions were that he would be engaged as counsel. The appellant’s life had changed significantly. He and Mrs Vatsyayann had divorced. He had new domestic responsibilities.

[65] On the question of penalty both counsel submitted that, were this Court of the view the penalty was inappropriate, it would be preferable for the Court to substitute a penalty of its own crafting.

[66] There was little attraction, submitted Mr Heron, in rescuing the appellant from his own foolishness in not presenting submissions to the Tribunal on penalty. The imposition of sanctions by the Tribunal did not give rise to any natural justice issue. In any event, on the basis of GS v Professional Conduct Committee30 and May v May,31 the imposition of a penalty was the exercise of a discretion. It was for the

appellant to show that the Tribunal had made an error of principle by failing to consider relevant matters, failing to consider irrelevant matters, or was plainly wrong.

[67] Mr Heron went so far as to submit that, were this Court to remit penalty back to the Tribunal, this would not only involve the medical profession in extra expense but the end result may be the Court would look foolish. Mr Hope, for his part, submitted that if the Court quashed the Tribunal’s orders cancelling the appellant’s

registration, he would nonetheless remain suspended, so there would be no element of public risk.

[68] In dealing at [25] with the wrongful enrolment charge and its penalty decision, the Tribunal said that the appellant had been receiving monies which he was not justified in receiving. It regarded this as a serious conclusion. Some care is needed in this area, given the division between registered patients (on a practice’s book over the past three years) and enrolled patients (who had given an informed consent). The charges before the Tribunal related to a selection of patients. Clearly none of them were entitled to be enrolled. But (excluding the obvious example of the four dead) there may well have been some patients who had visited the practice over the previous three years, in respect of whom, for a limited time, the Family

Clinic was entitled to receive capitation payments.32

[69] The Tribunal went on to state that a clear message had to be sent that offences of dishonesty would not be tolerated and would be treated seriously and with significant penalty. The charges the appellant faced were not offences involving dishonesty. Nor has he been prosecuted for dishonesty in a criminal court. Although there was evidence before the Tribunal of a staff meeting at which the appellant angrily stated that he was losing money and exhorted his staff to hurry up with enrolment procedures, it does not necessarily follow that this exhortation had a dishonest motive. Clearly, if the Family Clinic was going to continue its reputation of providing free treatment, its economic viability would depend on legitimate patients being entered into the PHO register as registered patients, and other legitimate patients being enrolled provided their consent had been obtained. The evidence of the exhortation falls short of establishing dishonesty which is a criminal

_{matter in respect of which the required burden of proof would attach.}

32 Of the 44 patients covered by the first charge a few only were arguably visitors to the Family Clinic inside the three year period. The sample is too small to generalise about legitimate registrations.

Disposition of appeal

Charges

[70] I have made it clear earlier in this judgment33 that I consider the Tribunal was correct in finding the charges the appellant faced were proved. There is no discernible error. The evidence necessary to establish each charge was proved to the required degree.

[71] With regard to the first charge relating to enrolment of patients without their informed consent, this did indeed happen. As the sole medical practitioner at the Family Clinic the appellant must assume ultimate responsibility. It may well be that he did not personally click on the “enrolment now” box. The appellant is not able to avoid overall responsibility for these wrongful enrolments, he being the only medical practitioner involved and his involvement being an essential prerequisite for the receipt of capitation payments, by pointing to his status as a salaried employee, or by saying he was not one of the trustees who owned the Family Clinic. As the sole registered medical practitioner at the Family Clinic it was he and he alone who was in command so far as medical procedures and capitation payments were concerned.

[72] I have already indicated some uneasiness34 about the sub-component of the charge relating to Mrs Vatsyayann – that he allowed her to conduct herself in ways to represent she was a qualified nurse or allowed other staff to so represent her. There was some evidence to support that charge and certainly no evidence from the appellant or his former wife to the contrary. But, in terms of penalty, I do not consider (because of the overlap) the sub-charge is significant.

[73] In terms of the appellant’s appeal under s 106(2)(a) against the findings of the

Tribunal, my conclusion is that it was justified in making the findings it did. Thus, the appeal in that regard is dismissed.

33 Supra [43] – [51].

Penalty

[74] Despite the appellant’s clear instruction that he wanted the enrolment process to be speeded up35 I consider the evidence before the Tribunal falls short of establishing that he had any dishonest purpose in mind. But dishonesty was not an ingredient of the charge.

[75] I have considerable unease in respect of the penalties imposed by the Tribunal under s 101. At a broad level my unease stems from the fact that the appellant, because of his stupid decision to absent himself from the Tribunal’s penalty hearing, did not have the opportunity to put before the Tribunal appropriate mitigating factors. I have no confidence that, had the appellant himself appeared or been represented by his daughter, the situation would have been much improved given the undisciplined way in which the appellant’s defence was run at the Tribunal hearing. Nonetheless, in a number of important areas, and through no fault of its own, the Tribunal was bereft of submissions in mitigation and was to some extent flying blind.

[76] Those areas, giving rise to matters which needed to be considered and weighed, included:

(a) The appellant’s professional history including recent competence

reviews;

(b) His vision or mission statement (if there was one) for the Family

Clinic;

(c) His then financial situation (relevant on the authorities to costs);

(d) The administrative arrangement and hierarchies of the Family Clinic and in particular how the wrongful enrolments came about;

(e) What arrangements (if any) the Family Clinic had in place to obtain signed patient consents to enrolment and why it was (if there was any explanation) that enrolments took place in the absence of such consents;

(f) What explanation, if any, the appellant had for allowing his wife to carry out the procedures which were the subject of the charges;

(g) Submissions relating to the overall clinical competence of the appellant’s wife, the risks which her involvement entailed, and the extent to which the expert evidence heard by the Tribunal properly described and assessed the risks to Mrs Vatsyayann’s involvement;

(h) Any acknowledgement of fault, blame, or contrition;

(i) The appellant’s future medical plans, including whether he intended to practise and if so in what capacity, whereabouts, under what degree of supervision, and generally whether he is amenable to cure;

(j) If relevant, any other approved disciplinary charges against the appellant in other proceedings;

(k) Any testimonials or supporting documents from patients or relevant communities.

[77] My conclusion is that, as a matter of fairness to the appellant, he should be extended the opportunity of having his penalty assessed by the Tribunal in the light of matters listed in the previous paragraph of this judgment.

[78] Certainly on the basis of the information before the Tribunal when it convened in Hamilton in April 2011, the penalties imposed were correct. It may well be that the information on any rehearing which the appellant chooses to place before the Tribunal makes no difference. But I reject (mildly like his submission) Mr Heron’s suggestion that such an outcome would make this Court look foolish. The

right of appeal conferred by s 106(2) is to ensure that outcomes and penalties for health practitioners are fair and appropriate.

[79] Looking at the penalties imposed by the Tribunal, it is apparent that the unexplored matters I have itemised36 can only relate to the cancellation of the appellant’s registration as a medical practitioner and to the costs order. Regardless of unexplored mitigating factors there can be no proper attack on the censure. The appeal is dismissed in respect of that penalty.

[80] In respect of the appeal so far as it relates to cost, I specifically approve the prospective quantum of $256,000. I am satisfied that the costs actually incurred by the Professional Conduct Committee and the Tribunal have been dealt with correctly by the Tribunal. Correct too is the assessment that, if the appellant is able to pay, the appropriate proportion is 50%. What will need to be re-examined are the appellant’s income, means, and asset position at the time of the April 2011 hearing (not subsequently) and the application of the principle, correctly recognised by the

Tribunal, of his means.37

[81] Mindful, however, of the costs which reconvening the Tribunal will bring to the medical profession,38 and mindful, too of a theme I detect in the appellant’s affidavits filed in this Court, also exhibited during an outburst at the hearing, that he considers, quite wrongly, that he has been victimised, I intend to structure this Court’s orders in such a way to ensure that a rehearing on penalty takes place against the background of the appellant placing full information before the Tribunal and the Tribunal thereby being fully informed.

[82] This Court’s powers on appeal are, in terms of s 109(3)(a) to confirm, reverse, or modify the decision appealed against. The Court has further power in lieu to direct the Tribunal to reconsider a matter (s 111(1)) and to give the Tribunal directions in respect of its reconsideration (s 111(2)(b)). Pursuant to those powers I

_{order and direct:}

36 _{Supra [76].}

37 _{Kaye v Auckland District Law Society above n 12.}

38 It being a matter for the Tribunal, I see no need for it to reconvene in Hamilton unless that is the most cost-effective venue.

(a) The cancellation of the appellant’s registration ordered by the Health Practitioners Disciplinary Tribunal on 10 May 2011 is reversed (quashed);

(b) The above order is to lie in Court and is not to take effect until the day the reconvened Health Practitioners Disciplinary Tribunal embarks on any rehearing of penalty;

(c) At any rehearing the Tribunal is directed to consider the matters which are enumerated in [76] of this judgment and any other relevant matters relating to penalty which the Tribunal considers appropriate;

(d) The Tribunal is directed not to fix a hearing date of its rehearing until such time as the appellant’s counsel has filed full submissions on the penalties of cancellation of registration and payment of costs. Such submissions are to include but are not necessarily limited to the matters enumerated in [76] and [80] of this judgment;

(e) Additionally the Tribunal is not to set a hearing date until it has received an affidavit from the appellant covering the matters enumerated in [76] of this judgment and additionally explaining his failure to appear at the 21 April 2011 hearing and further informing the Tribunal what activities, courses, or study, and/or income producing activities he has undertaken since cancellation of his registration. (Cancellation of registration may well be appropriate if the appellant has decided to abandon medicine.)

[83] The appellant and his counsel, Mr Hope (who has informed the Court he would be instructed on any hearing), are directed to file their respective affidavits and submissions within 25 working days of the release of this judgment.

[84] As is apparent from these directions, if the appellant and his counsel fail to file the necessary documents, then the Tribunal is under no obligation to set a hearing date. In that event, the quashing of the Tribunal’s order which cancelled the

appellant’s registration will remain lying in Court and will be ineffectual. To put the matter beyond doubt, I specifically record that had the Tribunal in April 2011 been informed that the appellant no longer wished to practise, then I would not have regarded cancellation of his registration as an inappropriate penalty.

Result

[85] In conclusion the result is:

(a) The appeal under s 106(2)(a) relating to the Tribunal’s findings of

disciplinary grounds against the practitioner is dismissed.

(b) The appeal under s 106(2)(b), relating to censure of the appellant by the Tribunal, is dismissed.

(c) The appeal under s 106(2)(b) relating to cancellation of the appellant’s registration and payment of costs is allowed but such order is to lie in this Court until the day the Tribunal embarks on a rehearing.

(d) Orders and directions pursuant to ss 109 and 111 are made in terms of

[82] of this judgment.

..........................................
Priestley J

Appendix

[1] This appendix to my judgment is designed to give a brief overview of the enrolled patient procedure as it applies to the Family Clinic and the appellant. I considered it was unhelpful and unnecessary to clutter up my judgment with too much of the detail. Much helpful evidence was presented to the Tribunal by Mr Simon O’Callaghan, a senior investigator in the Ministry of Health’s audit and compliance unit.

[2] In the mid-2000s public health funding in New Zealand changed from paying doctors for each visit by a patient, to a system whereby medical practitioners enrolled patients on their PHO register and received funding for that patient (regardless of the number of visits) on a per head or capitation basis.

[3] The amount of capitation payments was driven not only by the number of enrolled patients but also by other variables such as age, sex, and ethnicity. Capitation payments were paid to medical practitioners on a monthly basis.

[4] To process capitation funding claims each PHO received an electronic data file from each healthcare provider setting out the information in respect of patients who were either enrolled or registered. The resulting PHO register was the basis on which capitation funding was received.

[5] Each PHO, on receiving the electronic information from healthcare providers, would carry out a preliminary analysis of the data and check for anomalies and duplications. There is no need to specify the checking and cross-checking involved which have no relevance to this appeal.

[6] Healthcare providers are expected to submit electronic data every three months setting out information on patients enrolled or registered in respect of whom funding is being claimed. Approximately 80% of healthcare providers use the

MedTech 32 database to record the enrolment status of patients. Such was the position of the Family Clinic.

[7] A patient can be recorded in the MedTech 32 fields as “casual”, “deceased”, “not registered”, “other IPA”, “registered”, “transferring”, or “visitor”. Additional fields related to the enrolment status of a patient who could be recorded in the MedTech 32 database as either “confirmed enrolment” or “declined to enrol”. Once that patient had chosen to enrol at the healthcare provider concerned, that provider would receive the capitation-based funding for the patient.

[8] Obviously some transitional arrangements were necessary. Healthcare providers could receive capitation funding for a patient who was registered but not enrolled if the medical practice had contact with the patient within the last three years. Three years after the last visit of a registered patient, the entitlement to capitation funding would lapse. So, too, with enrolled patients. If there had been no contact with an enrolled patient for three years then the enrolment would lapse. Different arrangements applied to casual visitors or people who might seek medical attention on holiday.

[9] The critical difference between a registered patient and an enrolled patient is that an enrolled patient must give written informed consent to being enrolled as a patient of the healthcare provider. The gravamen of the charge laid against the appellant was that patients were enrolled who had not provided the written informed consent. Those patients, or some of them (certainly not the dead), might legitimately have been registered as patients with capitation payment entitlement ceasing after three years, but they certainly could not be classified as enrolled patients.