ANG v A Professional Conduct Committee [2016] NZHC 2949 (7 December 2016)

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ORDER PROHIBITING PUBLICATION OF THE APPELLANT'S NAME AND/OR IDENTIFYING DETAILS, INCLUDING WHERE HE LIVES AND WHERE HE WORKS, PURSUANT TO S 95(2)(D) OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003

On 7 December 2016 at 3.00 pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

[1] The appellant, X, has appealed against the Health Practitioners Disciplinary Tribunal’s decision to decline an application for permanent name suppression. In December 2015, a Professional Conduct Committee (PCC) laid a disciplinary charge before the Health Practitioners Disciplinary Tribunal (the Tribunal) alleging that X, a registered medical practitioner, had conducted himself in a dishonest and/or unprofessional manner that amounted to professional misconduct.

[2] The Health Practitioners Competence Assurance Act 2003 (the Act), in Part 5 provides a right of appeal to the High Court against refusal to grant permanent name suppression:

(d) any order made by the Tribunal under section 95 in respect of the person or any decision to refuse to make such an order.

[3] The High Court on hearing the appeal may confirm, reverse or modify the decision, and make any order that could have been made:

(b) may make any other decision or order that the person or body that made the decision or order appealed against could have made.

(1) Instead of determining an appeal under this Part, the appropriate court may direct the authority or Tribunal whose decision or order is

appealed against to reconsider, either generally or in respect of any specified aspect, the whole or any part of the decision or order.

(b) may give any other directions it thinks just as to the matter referred back for reconsideration.

[5] The particulars of the charge related to fraudulent entries in controlled drug registers (266 in total), 49 fraudulent entries in patient notes, forgery of signatures of certain colleagues, and self prescribing of drugs of dependence and/or abuse for his own use and without proper medical oversight.

[6] The charge was heard by the Tribunal in Tauranga. The PCC produced an agreed summary of facts which contained a written admission by the defendant and an admission that his conduct amounted to professional misconduct.¹The Tribunal was satisfied that, against the summary of facts and admission, the charge had been made out. The Tribunal found:

(a) X’s conduct involved a significant element of deceit, including to his family, his patients, his colleagues, the medical profession and as to the law.²

¹_{Under s 100(1)(a) and/or 100(1)(b) of the Health
Practitioners Competence Assurance Act 2003.}

		and ensuring compliance with the requirements for the use of such drugs”.³
	(c)	The fraudulent entries in the controlled drugs register and patient case
		notes occurred over a significant period of time. The Tribunal noted:
		Certainly in relation to the Fentanyl this was in the later months in
		2014 just prior to [X] having been discovered to have been making
		these entries, but in respect of the remaining drugs, Morphine and
		Pethidine, and the fraudulent patient case notes these are recorded as having occurred over a significant period of about 8 years.⁴
	(d)	With respect to the fraudulent entries in the patient notes, there is a
		significant risk of error and risk to the patient if the wrongful entries
		were taken into account and patients wrongfully advised or assisted.⁵
	(e)	By forging the signatures of his colleagues, X breached “the trust of
		those practitioners placed in him not to use their name or signature for
		any fraudulent or selfish purpose”, and placed the credibility and
		reputation of those practitioners at risk.⁶
	(f)	It was “not enough to say that there was the motivation caused by an
		addiction which may now be under control”.⁷
	(g)	There were significant elements of dishonesty and fraud over a period
		of time.⁸
[7]	The	Tribunal was of the view that ordinarily this kind of offending would

attract the sanction of a suspension.⁹However, weighing the other issues to be taken

into account the Tribunal concluded “while it was close to ordering suspension of X

_{for a period, it has decided to accept that this is not needed in the
circumstances”.}¹⁰

[8] Instead, X was censured, ordered to pay a fine of $8,000 and to pay $18,000 as a contribution to the costs of the PCC and the Tribunal. Conditions were also placed on his practice for a period of three years.

[9] During this period of professional misconduct, the appellant was addicted to Pethidine, Opioids and other prescription drugs of dependence. His addiction developed out of treatment for pain control but was also associated with a history of mental illness, depression, anxiety and post-traumatic stress for which he received comprehensive treatment.

[10] He was meeting his addiction by purporting to prescribe the drugs to which he was addicted to patients of his clinic, in the course of which he was making false entries in patients notes copying the signatures of some of his colleagues and also self prescribing drugs of dependence and/or abuse for his own use and without proper medical oversight.

[11] There is no evidence that he caused harm to any patient – notwithstanding

audits by the appellant’s colleagues in his practice and by the Medical Council.

[12] He was found out by one of his colleagues. He confessed to his actions immediately. He forthwith withdrew from medical practice. His addictions were treated by a team of doctors including high level addiction specialists. He was diagnosed with opiate addiction and undertook various medical facility treatments all at his own cost to treat and rehabilitate himself. He has lost income in excess of

[13] The appellant made an application for permanent suppression of his name, pursuant to s 95(2) of the Act. Section 95 provides:

(1) Every hearing of the Tribunal must be held in public unless the Tribunal orders otherwise under this section or unless section 97 applies.

(2) If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may (on application by any of the parties or on its own initiative) make any 1 or more of the following orders:

(b) an order prohibiting the publication of any report or account of any part of a hearing, whether held in public or in private:

(c) an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at a hearing:

(d) an order prohibiting the publication of the name, or any particulars of the affairs, of any person.

(3) An application to the Tribunal for an order under subsection (2) must be heard in private, but the other parties to the proceedings and any complainant are entitled to be present and to make written or oral submissions on the application.

(4) If the Tribunal proposes on its own initiative to make an order under subsection (2), it must give the parties to the proceedings and any complainant an opportunity to make written or oral submissions on the proposal; all parties and complainants (if any) are entitled to be present when any oral submissions are heard.

(5) Even if a hearing of the Tribunal is otherwise held in private, the Tribunal may allow any particular person to attend it if satisfied that he or she has a particular interest in the matter to be heard.

(7) Every person commits an offence and is liable on ... conviction to a fine not exceeding $10,000 who contravenes an order made under subsection (2).

[14] Section 95 in the Act can be compared with s 200 of the Criminal Procedure Act 2011 (CPA). Section 200 is the provision that governs the name suppression of those subject to criminal proceedings. It provides:

(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

(b) cast suspicion on another person that may cause undue hardship to that person; or

(f) lead to the identification of another person whose name is suppressed by order or by law; or

(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).

(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.

(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.

(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.

[15] The central issue on this appeal is whether or not there is any significant difference between the application of the standard “the Tribunal is satisfied that it is desirable to do so”¹¹in s 95(2) of the Act, and the criteria in ss 200(2) of the CPA. As this judgment will endeavour to demonstrate, there has not been consistent interpretation and application of s 95. Second, in this judgment under appeal and in other judgments, the policy disposition of the Tribunal has been consistent with the

_{policy disposition of s 200(1),(2), essentially reflecting a presumption
that there will}

be publication unless there is extreme hardship to the person convicted. I consider this approach to be an error of law. There is no way that s 95 of the Act can be interpreted as setting the same policy of suppression as in s 200 of the CPA.

[16] All statutory provisions, where the subject matter is applicable, fall to be construed as consistently as possible with the New Zealand Bill of Rights Act (NZBORA). Section 6 of the NZBORA provides:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

[17] Name suppression engages two important rights contained in the NZBORA. The first is found in s 14, which provides:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) the right to a fair and public hearing by an independent and impartial court:

[19] Although s 25 does not apply directly in the present case because professional disciplinary charges are not offences for the purposes of the NZBORA,¹²one of the policies that underlies s 25(a) originates from the common law and, to that extent, the policy is relevant. At common law, judicial hearings were to be conducted in public as a way of preventing corruption. Members of the public should be able to see the case argued and decided by a Judge in a public hearing. As

Publicity is the very soul of justice. It is the keenest to spur to exertion and the surest of all guards against improbity. It keeps the Judge himself while trying under trial. The security of sentencing is publicity.¹³

[20] In the past, a number of decisions of the Court of Appeal have emphasised not so much the policy to prevent corruption, but the basic value of freedom to receive and impart information. It is sufficient to illustrate this by citing the unanimous judgment of the Court of Appeal in R v Liddell:¹⁴

In considering whether the powers given by s 140 [of the Criminal Justice Act 1985] should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”. These principles have been stressed by this Court in a line of cases extending from BCNZ v A-G [1982] 1 NZLR 120 to Auckland Area Health Board v TVNZ Ltd [1992] 3 NZLR 406; (1992) 8

CRNZ 322 (CA) where a number of the intermediate decisions are cited. The basic value of freedom to receive and impart information has been re-

emphasised by s 14 of the New Zealand Bill of Rights Act 1990. And the principles just mentioned may be seen in vigorous — and, to some, even

[21] In September of this year, the Supreme Court released its decision in the case of Erceg v Erceg.¹⁵The Supreme Court has just delivered a unanimous judgment on the principle of open justice, which in my opinion, displaces the reliance on the justification of the basic value of freedom to receive import information as the underlying policy relating to suppression.

[22] In that case the trustees of two trusts settled by the late Mr Michael Erceg sought a non-publication order if they, the trustees, were referred to in oral argument in the course of a substantive appeal by the settlor’s brother, a discretionary beneficiary, who had sought access to the trust’s documents.

[23] Under the heading “Open Justice”, at the outset of the judgment, the Supreme

[2] The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle’s underlying rationale is that transparency of Court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of Courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process – parties, witnesses, counsel, Court officers and Judges. The principle means not only that judicial proceedings should be held in open Court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in Court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The Courts have confirmed these propositions on many occasions, often in stirring language.

[3] However, it is well established that there are circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice. So, a Court may order that proceedings be heard in camera, either in whole or in part, in the exercise of the Court’s inherent power. While the common law recognised very limited exceptions to the principle of open justice, the legislature has seen the need to confer on the Courts wider powers to hear evidence in closed Court, or to prohibit reporting of proceedings or aspects of proceedings, generally to protect those who are seen as vulnerable. Obvious examples relate to the identity of the victims of sexual offending and protection of children in family proceedings.

[24] I read that judgment as reaffirming the common law basis of the importance of the Courts doing business in public, confirmed in the decision of Scott v Scott, being the basis for open justice in New Zealand prior to the enactment of the New Zealand Bill of Rights.

[25] The Supreme Court reaffirmed that Judges of inherent jurisdiction have the power to make non-publication orders. But it is not sufficient that the matter involves airing of private family matters. The parties seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental principle of open justice.¹⁶

[26] The Supreme Court frames this as non-publication will only be appropriate if it is necessary to secure the proper administration of justice, which requires consideration of:¹⁷

[27] I note that the Supreme Court case deals with civil non-publication orders. The context is different, but the fundamental principles should, in my view, remain the same.

[28] X sought an order under s 95 of the Act for non-publication of his name or particulars of those affairs with identifying details. The PCC opposed the application.

[29] Having set out s 95 (see [10] above), the Tribunal observed that the presumption in s 95(1) endorses the principle of open justice. The Tribunal then observed the test was whether it is desirable and in exercising that judgment, had to consider the interests of any person and the public interest. The Tribunal then went on:

85.3 Public interest in knowing the identity of a health practitioner charged with a disciplinary offence.

85.4 Importance of speech and the right enshrined in section 14 of the New Zealand Bill of Rights Act 1990.

[30] The Tribunal went on to consider previous arguments made by X for interim suppression,¹⁸including an expert opinion that his addiction was a highly stigmatised disorder which was unlikely to be changed by making a public example of X. This was the expert opinion of Professor Sellman.¹⁹Secondly, the Tribunal considered a statement from personnel involved in the family practice where X currently works, expressing no concern at his fitness to practise and asking the Tribunal:

To consider the possible negative effect publication of [X]’s name may have on his patients and on [the] practice.²⁰

[31] The Tribunal then considered part of the evidence of a practitioner which included an opinion that suppression of name and identifying details “ ... may mediate the risk of suicide in a man with addiction and co-existing mental health issues”, referring to the apparent punitive effect this would have on his family. A practitioner’s opinion was:

[The publication] would outweigh the benefits of the public good from the knowledge that he was once very unwell.²¹

The submissions for [X] acknowledged the balance of [X]’s private interests against public interest factors in knowing the name of the practitioner and facilitating an open and transparent disciplinary process.

It was submitted that there are no specific persons or class of patient requiring protection by the publication and [X]’s interest outweighed the public interest.

Reference was made in those submissions to the health issues and the effect on [X] of publicity; as well as the other significant traumatic changes that occurred in the family.²²

[33] The Tribunal said the first question is the openness of the public disciplinary process.²³

[34] The Tribunal moved on to reason that there are questions in this case other than just X’s addictions and health issues that impact on whether or not name suppression is granted. These were:

Significant factors of dishonesty, deceit and to adapt the word of the charge accepted by [X], “fraud”. As noted these are significant matters occurring over a significant period of time.²⁴

[35] Then an important paragraph, important because it is a window into the heart of the thinking of the Tribunal is the passage:

Certainly there are the addiction and health issues that have led to the offending, but nevertheless that offending has occurred and the Tribunal must address the public interest in knowing about the identity of the practitioner.²⁵

There are two ways to deal with this; the first is to address what is rehabilitative and helpful to [X] in dealing with his addictions and health matters and secondly to ensure that the public are aware of matters that it is in the public interest they should know. One way would be to make the order sought by [X] for non-publication of his name and identifying details; but another way would be to order non-publication of certain personal matters relating to [X] and his health issues such that there is no impact so far as these are concerned on his rehabilitation or his health recovery and maintenance of his addiction control.²⁶

There is not compelling evidence provided that publication of [X]’s name will have any significant traumatic effect on his health or recovery or the present control of his addictions.²⁷

[37] The Tribunal was aware of references provided to the Tribunal from patients from his former practice who had followed him to his current practice and who do so despite knowledge of X’s addiction issues.²⁸Then comes a critical paragraph:

The Tribunal draws a clear line between addiction and health issues and fraud and deceit issues. The Tribunal concludes that it is in the public interest that those parts of this decision that relate to [X]’s dishonesty and fraud and identification that he is the practitioner involved are in the public interest; but that, except to the extent of sufficiently explaining the background to the offending in relation to addiction from the drugs used by

[X] as a consequence of the deceit and fraud, mental and other health issues should remain private to enable his continued rehabilitation.²⁹

[38] I note there is a question of fact here, pursued by Mr Waalkens QC at the hearing that part of this reasoning ignores the expert opinion evidence that X’s health and life may be threatened by the publication.

[39] The Tribunal essentially must have rejected that evidence and formed its own conclusion that he had significant resilience to enable him to cope with the publication of his name.³⁰

[40] Interestingly, this judgment was made before considering, as the Tribunal later did, the effect of trauma on the family from the publication. I will return to this. The Tribunal, however, first moved on to the question of the implication of other practitioners. Because X has been practising in a country area, a suppression would likely implicate other practitioners in the area.³¹

[41] Then the Tribunal moved on to consider the private family matters, recording evidence of a significant trauma in X’s family, which it acknowledged need not be in any way part of the publicised decision.³²

[42] The Tribunal considered this to be a background but not critical factor. The Tribunal responded by suppressing all detail of that but essentially did not take into account the impact of the publication of X’s name on the family as a trauma in itself loaded on top of a particularly personal, private but manifestly profound trauma, suffered by the family recently. The cumulative effect, particularly on X’s wife, was not discussed.

[43] Having weighed all those issues in the balance, the Tribunal concludes that the application for order for non-publication of X’s name and identifying details

should be declined. There is the order for non-publication of family matters as mentioned.³³

[44] As to the law, the argument was that granting or refusing name suppression involved an exercise of discretion such that the May v May³⁴principles applied and it was necessary for the appellant to show that the Tribunal made an error of principle, considered irrelevant matters, failed to consider relevant matters or was plainly wrong. I agree that this is the correct standard.

[45] Mr Waalkens QC emphasised the significance of the evidence of the two experts, Professor Sellman and another practitioner. Their opinions were admitted by consent.

[46] In its decision the Tribunal criticised the appellant by observing these witnesses were not available for cross-examination and questioning. There was a misunderstanding between counsel and the Tribunal. They could have been called.

[47] Mr Waalkens argued the desirable test in s 95 is a lower threshold than the standard in s 200 of the CPA and cited a number of authorities including ABC v CAC,³⁵a decision of Chisholm J, who at paragraph [44], having reviewed the authorities stated the position:

I agree that the test in s 106(2) [the desirability test] involves a threshold that is significantly lower than the test generally used by the Courts.

[48] Mr Waalkens noted that the Tribunal did not direct itself that it was a lower threshold than generally used by the Courts.

[49] Mr Waalkens referred to a number of cases where suppression orders have been made, citing in particular Dr T³⁶where the Tribunal granted permanent suppression to a general practitioner who falsified prescriptions in the names of others over a lengthy period of time to support her own drug addictions. She had also been convicted of dishonesty on 52 occasions in writing false prescriptions. Where, having cited the High Court in B v B,³⁷the Tribunal said:

In the normal course where a professional person appears for a disciplinary tribunal is found guilty of an offence, that person should expect that an order preventing publication of his or her name will not be made. This will be especially so where the offence found to be proved or omitted is sufficiently serious to justify striking off or suspension from practice. But where the orders made by a disciplinary tribunal in relation to the future practice of the defendant are directed towards that person’s rehabilitation and there is no striking off or suspension but rather, as here, a decision that the practice may continue, there is much to be said for the view that publication of the defendant’s name is contrary to the spirit of the decision and counterproductive. It may simply cause damage which makes rehabilitation impossible or very much harder to achieve.

[50] That passage came from a decision of the High Court of Blanchard J. It involved a dentist who had offended sexually and seriously against four patients. He was not suspended but conditions were imposed on his practice. Following the above referred principle, the High Court granted him permanent name suppression. This case appears not to have been considered by the Tribunal in this case.

[51] Mr Waalkens also referred to the case of Dr Y.³⁸That was another case where permanent name suppression was granted to a GP who falsified prescriptions of patients to feed her own addiction to prescription medicines. Rehabilitation played a significant factor in the Tribunal’s decision to grant suppression.

[52] Mr Waalkens also submitted that there was no discussion by the Tribunal of decisions where there was suppression of a practitioner’s name and identifying details, including the names and location of the practice. Mr Waalkens referred to a very recent decision of the Tribunal dated 25 August 2016 in Dr G 7³⁹in which the

[53] The submissions of the PCC on appeal began by examining the significance of the wrongdoing. Essentially, the argument was that X’s conduct involved a significant element of deceit to his family, his patients, his colleagues, the medical profession and to the law. It was submitted that the forged prescriptions and entries on the Controlled Drugs Register defeats the purpose for maintaining accurate records, has happened for over eight years and it was not enough to say that the motivation for doing this was caused by an addiction, which may now be under control.

[54] The PCC supported opposition for name suppression essentially saying that the scale of offending involving significant fraud and forgery over eight years, increased the public interest in an open process. That because the principles of honesty, integrity and respect for patient privacy are at the heart of professional obligations, therefore public interest considerations were extremely compelling and deserve considerable weight. The doctor’s addiction may explain his behaviour but does not excuse it “and should not prevent him from being held accountable”. The PCC referred to the fact that others already knew of the offending as he had provided positive references from patients and colleagues who were aware of his addiction and still supported him. It placed an onus of proof on the appellant to prove that his family would be unable to cope with the publicity.

[55] Referring to the obligation under s 95 when considering an application for suppression, to consider the public interest,⁴⁰this was interpreted in submissions to the Tribunal by counsel for the PCC as deploying the criterion of “accountability of the disciplinary process” and “public interest in the identity of the practitioner”, citing the decision in A v Director of Proceedings.⁴¹

[56] Counsel for PCC distinguished the Tribunal decision relied upon by the appellant, particularly in Dr T and Dr Y by submitting the conduct at issue in both cases was at the lower end of the scale of offending, compared with the appellant’s

[57] The submissions of counsel for the PCC relied significantly on the scale of the offending. Counsel relied on the fact that the offending had the real potential to affect ongoing care and treatment of patients (notwithstanding none was proven, although the offending had been over eight years and involved 266 entries in the Controlled Drugs Register and 49 false entries in patient notes).

[58] The argument also relied on cases where name suppression was refused to other doctors who had experienced addiction problems. The main purpose of these submissions was to submit that name suppression is the exception not the rule. That led to the important submission that there was no legal error on the part of the Tribunal to determine that the appellant’s rehabilitation would not be significantly affected by the publication. It was further submitted the weight to be given to the appellant’s evidence and the medical evidence was a matter for the Tribunal, citing

Harman v Director of Proceedings.⁴²Dealing with the tragedy suffered by the

family in a traumatic family incident, this submission was turned around by counsel for the PPC noticing his evidence that the appellant had coped with it sensitively and courageously without recourse to substance use and this new found ability to cope with significant duress best reflects the psychological progress he has made to date.

[59] The argument was that publication of X’s name would not have a permanent effect on his career, he not having been suspended from practice.

[60] There was evidence, relied on by counsel for PCC that the appellant’s employers and at least some of his patients know of his background and problems. The patients stay with him and indeed have changed clinics to stay with him and his new colleagues have advised the Tribunal “we have never had any reason to regret employing [X]”. However the same personnel are concerned about the possible negative effect of publication on his patients and on “our” practice. The overall submission was that there was no error of the sort that under May v May justifies

⁴²Harman v Director of Proceedings HC Auckland CIV-2007-404-3732 (12 March 2009), at

[61] Counsel for the PCC generally relied on the positive opinions of experts that X was coping with the family trauma, the disclosure of his misconduct and his efforts at rehabilitation and fighting his addiction.

The sheer number of fraudulent entries in the Controlled Drug Register (266 in total) is demonstrating the seriousness of the misconduct and the need to address the public interest in knowing the identity of this person.

[63] So it was submitted that it could not be plainly wrong for the Tribunal to determine that pubic interest factors outweighed the personal interest. As to the desirability threshold, it was submitted overall that determination of desirability: “is simply part and parcel of the exercise of discretion”.⁴³

[64] The respondent’s three key submissions were in closing, first, the Tribunal gave adequate consideration of the appellant’s personal interest by non-publication orders that were made, which are adequate to address the private interests of the appellant. Second, that publication of the appellant’s name is relevant to the accountability of the disciplinary process: “the public interest factors of openness and transparency were clearly central to the Tribunal’s decision”. Third, it cannot be established the Tribunal was plainly wrong.

[65] Counsel for the PCC placed the need for the appellant to be made “accountable” in the forefront of their submissions, together with the “public interest requiring openness and transparency” of all Tribunal decisions.

[66] I think there are errors in the Tribunal’s decision relating to the Tribunal’s assessment of accountability and to the weight attributed to the public interest, as requiring openness.

[68] What is not stated in this discussion notwithstanding the deployment of the value of accountability,⁴⁴is that the dishonesty, deceit and fraud were the false prescriptions in the names of patients. But none of those patients knew about it, nor were affected by it. They may still not know about it. These patients are not on the normal application of the word, victims. They were not harmed. This was because X’s colleagues intervened. They may never have been harmed anyway. No-one

[69] Counsel for the PCC cited a decision of Pankhurst J in A v Director of Proceedings⁴⁵where the Judge noticeably did not deploy the value of accountability of the disciplinary process or the value “public interest in the identity of the practitioner”, rather the Judge articulated a discretion. What Pankhurst J said was:

... following an adverse disciplinary finding more weighty factors are necessary before permanent suppression will be desirable. This, I think, follows from the protective nature of the jurisdiction. Once an adverse finding has been made, the probability must be that public interest considerations will require that the name of the practitioner be published in a preponderance of cases. Thus, the statutory test of what is “desirable” is necessarily flexible. Prior to the substantive hearing of the charges the balance in terms of what is desirable may incline in favour of the private interests of the practitioner. After the hearing, by which time the evidence is out and findings have been made, what is desirable may well be different, the more so where professional misconduct has been established.

[70] The value ascribed to “the openness of the public disciplinary process” is not

[71] There was no analysis in the PCC submissions nor in the reasoning of the Tribunal which examined whether a judgment that the conduct was not sufficient to require the medical practitioner to be suspended or prevented from practising was nonetheless sufficiently serious to make it desirable that all members of the public, be they patients or not, should know of his conduct. This is against a background where since the breaches took place, the doctor has shifted practice, albeit within the same rural region and where a number of his patients have followed him knowing his personal situation, and that he has been welcomed by the fellow practitioners in

[72] The submission from personnel involved in the family practice where the appellant currently works supported the application for suppression, asking the Tribunal to consider the positive negative effect that publication of his name may have on his patients and on their practice.

[73] The fact that the PCC has allowed X to continue to practise, is a judgment that he is fit to continue practising medicine. This means that the PCC judges that the public can have trust in X. In turn, this exposes the critical assumption that the public have a right to know, independent of any need to know.

[74] Given these considerations, there can be no suggestion that suppression of this doctor’s name and the area where he practised, together with publicity that he has been allowed to continuing practicing, will undermine public confidence in the administration of the competence of health practitioners.

[75] I have drawn attention to the fact that one can also have regard to the effect of the publication of X’s name on his immediate family who are at the present time coping with an extremely challenging, traumatic, family tragedy.

[76] Section 95(1) reflects the principle that hearings of a Court should be conducted in public, absent special reasons. That principle does not reflect some inherent constitutional right of the public to know subsequent to the hearing, every aspect of the hearing.

[77] Section 95 has the heading “Hearings to be public unless the Tribunal otherwise orders”. That is the Scott v Scott principle, whose function is to ensure that the adjudicator’s work is done in public, in order to avoid any corruption. Publication of the result of the hearing and the reasons naturally follows the same Scott v Scott principle. Usually that will reveal the name of the practitioner. But where the practitioner is considered fit to practise, and no-one has in fact been harmed, there is clearly a discretion allowed by s 95, which is not qualified by a mandatory application of making the person “accountable” to society, a standard which implies some need for reckoning, a punishment to even up or assuage harm done.

[78] In my judgment, there was an error in the analysis of the Tribunal; being a significant overweighting of the public interest to know just who it was being disciplined, even in a case where the professional was not prevented from continuing to practise, and was assessed at being of no risk to the public. Nowhere is s 95 predicated on the need for the doctor to be held to account publicly.

[79] The Tribunal fell into error by importing into the application of s 95 of the Act, criteria deployed in a different statute, the Sentencing Act, applying to the criminal jurisdiction where there always are victims of the offender, and where the principle of accountability is expressed in the Sentencing Act 2002, but not expressed in the Act:

(1) The purposes for which a court may sentence or otherwise deal with an offender are—

(a) to hold the offender accountable for harm done to the victim and the community by the offending;

[80] For these reasons, the Tribunal’s decision has sufficient error to justify

[81] As noted at the outset, (see [3] above), Parliament has given this Court the ability to make any decision that the Tribunal could have made.

[82] There are three considerations in this case, which taken together make it desirable to prohibit the publication of the name of X. It may be noticed that s 95 setting the standard of desirable in subsection 2 (see [13] above) does not set out criteria, unlike the quite different section, s 200(2) of the Criminal Procedure Act. (See [14] above).

(a) That the Tribunal has reached the conclusion that it would not order suspension of X from practice (see [7] above);

(b) That the evidence of the two experts, Professor Sellman and another practitioner, highlight risks of the personal welfare of X if his name is published;

(c) That consideration needs to be given to the effect of publication of X’s name upon his wife and immediate family in a context where they are already grieving as a result of an unrelated family tragedy.

[84] The other practitioner and Professor Sellman are both psychiatrists. X was a patient of the other practitioner. The other practitioner gave evidence as to X’s commitment to the professional and personal requirements of his treatment plan and to the strengthened relationships he has with his wife and children. He indicated favourable prognostic factors, including, but not only, abstinence of both alcohol and opioid use since mid-September 2014. He was of the opinion that cessation of work for X would be the single biggest risk factor to the maintenance of his current mental state. Professor Sellman is a professor of psychiatry and addiction medicine and director of the national addiction centre at the University of Otago, based in Christchurch. He has not personally treated X but has peer reviewed the reports of a number of clinicians involved in this case, including Dr Tina Page, a psychiatrist instructed by the Medical Council to assess X’s fitness to practice, another doctor, Mr David Benton, a psychologist, a neuropsychologist’s report and X’s agreement with the Health Committee. He spoke to the other doctor and to X. Under the heading “potential for harm with a punitive approach”, he said:

[X] has suffered enormously already. However, he has been impressive in admitting his deviant and dysfunctional behaviour brought about by drug addiction from the moment of being confronted by his medical colleague.

His poor behaviour is not connected with a personality disorder. It was generated through an initial attempt at self medicating stress and sleeplessness, which then developed into a full blown opioid⁴⁶addiction over time. As drug addiction becomes established, the person’s life constricts and focus increasingly on insuring supply and consumption of the drug of choice in response to a widening set of internal and external cues. Brain changes occur, particularly in the limbic system, pre-frontal cortex and connections between the two, so that undertaking the addictive behaviour becomes an

[85] Under the heading of “likelihood of deterrence”, he was of the opinion that if X is removed from his practice there is a very high likelihood of significant, substantial effects on his health and recovery. He ended his opinion with this paragraph:

In my opinion, I consider it is highly unlikely that making a public example of [X] is going to change these ingrained social dynamics and attitudes. In fact it may exacerbate the stigma of being a doctor with addiction and lead to greater denial and bravado in other doctors at risk.

[86] The Tribunal had also before it the evidence of the practice manager at the clinic where X is now employed. She advised the Tribunal that X has been employed as a GP at this clinic since February 2015, working four days a week. During the past 12 months, X has built a solid practice and currently has 669 patients registered to him. The practice register has grown from 2,285 to 3,140 in that time. That he is a very popular doctor and a significant number of the patients registered at this practice because this is where they could see X. She gave evidence principally to ensure that X would be allowed to continue practice. If not, she was of the opinion that the impact on his patients would be immense.

His patients choose to see him, and as above, many patients now enrolled at the practice are registered here solely because of him.

[87] She also advised that it is difficult to obtain practitioners to work in the rural sector. That in the five years there has been a 25 per cent vacancy rate in rural general practice and in 2015, this rate was up to 34 per cent for permanent positions. She advised:

Given the difficulty we would be likely to face in replacing [X] for any length of time, the impact on the entire practice could be devastating.

[88] She ended: “We have come to depend heavily on him and he has not let us down”.

[89] Publication of X’s name would be punitive in these circumstances. It would also in a sense contradict the judgment of the Tribunal that he should be allowed to continue to practice. More importantly, it runs the risk of causing X to regress.

[90] Mr Waalkens QC pointed to a number of cases of this type where permanent suppression of name has been granted by the Tribunal,⁴⁷Dr T,⁴⁸which decision cited a dictum of Blanchard J in the High Court in the case of B v B⁴⁹where Blanchard J said:

But where the orders made by a disciplinary tribunal in relation to the future practice of the defendant are directed towards that person’s rehabilitation and there is no striking off or suspension but rather, as here, a decision that practice may continue, there is much to be said for the view that publication of the defendant’s name is contrary to the spirit of the decision and counterproductive. It may simply cause damage which makes rehabilitation impossible or very much harder to achieve.

[91] I am of the view that it is appropriate to end this litigation here by the High

(a) This Court quashes the Tribunal’s decision where it declined to order permanent suppression of the appellant’s name and identity and details that identify him;

(b) There is an order pursuant to s 95(2)(d) permanently prohibiting publication of the appellant’s name or details that might identify him, including where he lives and where he works;

IN THE MATTER OF	the Health Practitioners Competence Assurance Act 2003
BETWEEN	ANG Appellant
AND	A PROFESSIONAL CONDUCT COMMITTEE Respondent

Hearing:	26 October 2016
Appearances:	A H Waalkens QC for Appellant A K Miller for Respondent
Judgment:	7 December 2016

High Court of New Zealand Decisions

ANG v A Professional Conduct Committee [2016] NZHC 2949 (7 December 2016)