Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand [2017] NZHC 2847 (20 November 2017)

Last Updated: 8 December 2017

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-488-000066 [2017] NZHC 2847

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

Hearing:	24 October 2017
Counsel:	C Muston for Appellant DR La Hood for Respondent
Judgment:	20 November 2017

_{JUDGMENT OF DOWNS J}

This judgment was delivered by me on Monday, 20 November 2017 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

C Muston, Whangarei.

Luke Cunningham Clere, Wellington.

EMMERSON v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 2847 [20 November 2017]

Table of Contents

_{Para No}

The appeal [1] Background in brief [2] The Tribunal’s decision [21] Procedural grounds of appeal [29] Challenges to liability [45] Dr Emmerson’s prescription of drugs [46]

Dr Emmerson’s “recreational” drug use [60] Misleading the PCC [74] Challenges of penalty [85] Approach on appeal [86] Rehabilitation balanced against punitive effect of penalty [98] Would a lesser penalty suffice? [107]

Dr Emmerson’s public safety risk [111] The case law [115] Final assessment [127] Name suppression [130] Result [132] Costs [133]

The appeal

[1] The New Zealand Health Practitioners Disciplinary Tribunal (the Tribunal)

found Dr Lynda Emmerson committed two charges of professional misconduct.¹

The first concerned Dr Emmerson’s prescription of drugs of dependency to people with whom she had a close personal or professional relationship. The second concerned Dr Emmerson’s use of methamphetamine and cannabis, and a related attempt by her to deceive the prosecuting authority, the Professional Conduct Committee (PCC). The Tribunal ordered cancellation of Dr Emmerson’s

registration. Dr Emmerson appeals.² She challenges the Tribunal’s findings in

relation to both liability and penalty. Process points are also raised.

Background in brief

[2] Dr Emmerson first studied law, then medicine. In 2012 she graduated with a

_{Bachelor of Medicine and Bachelor of Surgery. Dr Emmerson was provisionally}

¹ _{A Professional Conduct Committee v Emmerson MPDT 887/MED 16/358P, 12 May 2017.}

² It is common ground Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 governs the appeal vis-à-vis liability. It is not common ground this approach governs penalty. See [85]–[96].

registered on 26 November 2012, and registered a year later. From December 2012

Dr Emmerson was a house surgeon at Whangarei Hospital. In March 2014 she began at Tumanako, the adult mental health inpatient unit. In December 2014

Dr Emmerson practised as a psychiatric registrar there.

[3] Between 9 September 2013 and 30 April 2015 Dr Emmerson wrote seven prescriptions for her partner (B). She prescribed a variety of drugs including diazepam, morphine sulphate, dihydrocodeine tartrate, amoxicillin and tramadol. Morphine sulphate is a Class B controlled drug. Diazepam and dihydrocodeine tartrate are Class C controlled drugs. B had previously been prescribed morphine sulphate by others.

[4] Dr Emmerson said B’s doctor left Whangarei at the end of 2013, and despite her encouragement, was reluctant to see another doctor. Dr Emmerson said on each occasion, she took B’s history, examined him and made proper notes. And, her prescriptions were largely consistent with those given by B’s previous doctor.

[5] Dr Emmerson referred specifically to a prescription written 20 April 2015 for controlled drugs. She said B was “in reasonably severe pain” after hurting his back. Dr Emmerson said she consulted an outdated version of Cole’s Medical Practice in New Zealand to ensure it was not unethical to write the prescription. Dr Emmerson said a nursing manager confirmed the propriety of her action. However, Dr Emmerson did not check the guidelines issued by the Medical Council of New Zealand. These provide practitioners should not prescribe or administer drugs, especially drugs of dependence to anyone with whom they have a close personal relationship.

[6] On 2 September 2013 Dr Emmerson prescribed B’s mother (V) 20 x 1 mg Lorazepam tablets. Lorazepam is a Class C controlled drug. The patient had not been prescribed this drug before. Dr Emmerson also prescribed amoxicillin.

[7] On 1 October 2014 Dr Emmerson prescribed V 240 x 50 mg tramadol capsules, and doxycycline.

[8] Dr Emmerson said V was distrustful of the medical profession. Dr Emmerson said she took a medical history, examined the patient and documented her findings before writing these prescriptions.

[9] On 22 April 2015 Dr Emmerson prescribed Lorazepam to a colleague, (K), a nurse at Tumanako. Dr Emmerson gave evidence about surrounding circumstance. She said K asked for a prescription for the drugs as K was anxious about travelling. Dr Emmerson encouraged her to see her usual doctor. K later told Dr Emmerson she was having difficulty arranging an appointment. She sent several text messages to Dr Emmerson asking for a prescription. Dr Emmerson said she eventually relented.

[10] K attended a pharmacy, collected the drugs, took a photograph next to a newspaper identifying the date—the photograph was adduced in evidence—and then returned the Lorazepam to the pharmacist. As the Tribunal observed, this sequence was “very odd”.³

[11] On 29 April 2015 Dr Emmerson’s employer, the Northland District Health Board, complained to the Medical Council about Dr Emmerson’s “serious mis-prescribing” of drugs and Dr Emmerson’s “own drug use”. The Board recorded nursing staff as saying Dr Emmerson had told them she would, if tested, fail a urine toxicology test for “different substances of abuse”.

[12] The complaint was referred to a health committee of the Medical Council. The committee engaged Dr Page to assist it with the second allegation: Dr Emmerson’s alleged drug use. Dr Page and Dr Emmerson met on 12 June 2015. Dr Page later reported to the committee. Dr Emmerson responded. The sequence is important.

[13] Dr Page’s report contained Dr Emmerson’s account to her. Dr Emmerson

said:

(a) From 2013 she smoked one or two points of methamphetamine at four or six weekly intervals, but only at weekends.

³ A Professional Conduct Committee v Emmerson, above n 1, at [35].

(b) She last used methamphetamine at Easter 2015; the drug boosted her energy levels; and she used it only when she had four days off work. Dr Emmerson said she would not use methamphetamine anymore.

(c) She used cannabis, but would stop this too if she returned to work.

[14] Dr Emmerson responded to Dr Page’s report by email. Dr Emmerson said

she had told Dr Page:

(a) She had “probably used methamphetamine on around six occasions in total over my entire life and this was in the period January 2013 to April 2015”. Dr Emmerson said “I don’t know how much a point is but it was a small amount”.

(b) She “used methamphetamine on Easter Sunday”; “prior to that was

over the Christmas break”.

[15] As will be apparent, the two accounts of what Dr Emmerson said to Dr Page are not identical. But they are similar.

[16] Dr Emmerson underwent a drug test on 3 and 4 June 2015. The test concerned the period between 18 February and 19 May 2015. Dr Emmerson tested negative for methamphetamine but positive for cannabis. The health committee concluded Dr Emmerson did not have an ongoing drug problem. It conveyed this opinion to Dr Emmerson on 18 September 2015.

[17] By then, the PCC had told Dr Emmerson it was investigating her in relation to:⁴

• Your lack of compliance with acceptable prescribing practice (including Council standards and legal requirements) and in particular your prescribing to those close to you and those not under your care; and

• The appropriateness and safety of your conduct and judgment with regard to your recreational drug use.

⁴ The PCC wrote to Dr Emmerson on 18 August 2015.

[18] The PCC interviewed Dr Emmerson on 16 December 2015. Dr Emmerson’s

partner was present. Dr Emmerson:

(a) Accepted she used cannabis in private when “stressed out”, and to ease chronic pain in her arm. She said she had used cannabis two or three weeks earlier to cope with events.

(b) Told the PCC she had used methamphetamine on one occasion while on holiday in Fiji. When asked by the PCC whether you she had used methamphetamine in New Zealand, Dr Emmerson asked B, “I don’t think I have, have I”? He replied, “No, not with me”.

(c) Then told the PCC she had not used methamphetamine in

New Zealand.

[19] The PCC did not then have Dr Page’s report or Dr Emmerson’s response to that report. By 19 February 2016 it had both. On that date it wrote to Dr Emmerson to invite her attention to what she said to Dr Page about her methamphetamine use in New Zealand. The letter particularised Dr Page’s account, Dr Emmerson’s response and what Dr Emmerson had said to the PCC on 16 December. It reads:

1. Thank you for meeting with the Professional Conduct Committee

(Committee) on 16 December 2015.

2. The Committee has since had an opportunity to consider the oral submissions you made at that meeting and the evidence gathered by the Committee to date. The Committee has noted an inconsistency between the evidence you provided at the meeting with the Committee and the evidence provided to the Committee by the Medical Council Health Committee (Health Committee).

3. In particular, the information provided to the PCC from the Health

Committee in its email of 2 September 2015 (attached) states:

“... The Health Committee received the same concerns that have been referred to the PCC. In response, Dr Emmerson agreed to have a dual diagnosis psychiatric assessment with Dr C Page. The Committee needed this to establish if Dr Emmerson had a substance-related disorder or a mental health issue. The assessment went ahead on 12 June 2015, and during the course of this assessment Dr Emmerson admitted Cannabis use, and that she had used Methamphetamine from time to time since 2013, with the most recent use at Easter 2015, and that she did not intend to use

Methamphetamine again. She also told the assessor that if she

were to return to work she would stop using Cannabis.”

(Emphasis added)

4. The PCC notes that you advised the Committee on 16 December 2015 when asked about your recreational drug use that:

a. You had used methamphetamine on one occasion. This was when you had gone to Fiji on holiday with your partner, [B].

b. When asked by the PCC whether you had ever used methamphetamine in New Zealand you turned to [B] and said ‘I don’t think I have, have I?’ to which [B] said, ‘No, not with me’. You then told the PCC that you had not used methamphetamine in New Zealand.

5. As your response was inconsistent with the information previously provided to the PCC from the Health Committee, the PCC requested a copy of the extract from Dr Page’s report discussing your methamphetamine use. The Health Committee provided the PCC with a copy of this extract and your response on 10 February 2016 (Document 15). The PCC notes that in your response to Dr Page’s report you state:

‘I used methamphetamine on Easter Sunday prior to that it was over the Christmas break ... I have sat down and tried to work out my methamphetamine use this week and have probably used methamphetamine on around 6 occasions in total over my entire life and this was in the period January 2013 to April 2015’.

6. In light of your above response, the PCC would like to afford you the opportunity to address this issue and advise the PCC on how many occasions you have used methamphetamine in the past.

7. In addition, please find enclosed by way of supplementary disclosure a copy of the documents obtained by the PCC during the course of its investigation.

8. Should you have any questions, please do not hesitate to contact me.

[20] Dr Emmerson replied to the PCC by email on 21 March 2016. She said: “I stand by my comments I made to you at our meeting and believe that my drug test confirms the veracity of such statements. I do not wish to make any further comment in this regard”. More about this topic later.

The Tribunal’s decision

[21] The Tribunal adopted the widely accepted two-stage approach in relation to alleged professional misconduct. This approach requires a tribunal to first decide if

there has been a departure from acceptable standards. And then to inquire if the departure is sufficiently serious to warrant sanction.⁵

[22] The Tribunal took guidance from Collie v Nursing Council of New Zealand.⁶

There, Gendall J considered professional misconduct as “behaviour which falls seriously short of that which is to be considered acceptable and not merely inadvertent error, oversight or for that matter, carelessness”.⁷ His Honour considered malpractice or negligence must “be of a serious degree such as to be substantially below the standards expected of a [practitioner]”.⁸

[23] The charges alleged, in the alternative, Dr Emmerson had brought “discredit”

to the medical profession. Gendall J said of that term:⁹

To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard for the question to be asked by the Council whether reasonable members of the public, informed and with the knowledge of all the factual circumstances, could reasonably conclude that the reputation and good standing of the ... profession was lowered by the behaviour of the [practitioner] concerned.

[24] The Tribunal had “no difficulty” in concluding the PCC had established the first charge.¹⁰ Dr Emmerson had breached the Medical Council’s guidelines, and failed to “make even the most elementary enquiries” into the circumstances in which she was entitled to prescribe to those close to her.¹¹ Her conduct called “seriously into question her fitness to practice and either brought or was likely to bring discredit to the medical profession”.¹² The Tribunal said the interests of the public and patients required doctors to maintain a degree of objectivity. “Any breach of the

_{MCNZ guidelines is serious”.}¹³

⁵ _{F v MPDT [2005] 3 NZLR 774.}

⁶ _{Collie v Nursing Council of New Zealand [2001] NZAR 74.}

⁷ _{At [21].}

⁸ _{At [23].}

⁹ _{At [28].}

¹⁰ _{A Professional Conduct Committee v Emmerson, above n 1, at [63].}

¹¹ _{At [63].}

¹² _{At [63].}

¹³ At [67].

[25] The Tribunal also concluded Dr Emmerson’s drug use constituted

professional misconduct. In its words:¹⁴

... for any doctor to commit serious criminal offences and, most particularly, regularly to use prohibited drugs such as methamphetamine and cannabis during a period when he or she is practising, unquestionably brings the profession into disrepute.

[26] The Tribunal found Dr Emmerson deliberately misled the PCC about her methamphetamine use. This too was professional misconduct likely to bring the profession into disrepute.

[27] The Tribunal considered the first charge, in isolation, warranted censure and a period of suspension to mark the seriousness of the conduct. The second charge altered the calculus. The Tribunal concluded it could not discharge its responsibilities to the public and profession in allowing Dr Emmerson to continue to

hold registration as a doctor. The Tribunal emphasised:¹⁵

(a) The seriousness of the charges.

(b) Their cumulative effect: not only had Dr Emmerson “demonstrated an acute lack of judgment” but also “an irresponsible attitude to complying with her professional obligations, the criminal law and the duty of candour which she owes to her professional organisation”.¹⁶

(c) The conduct jeopardised the safety of the patients to whom

Dr Emmerson had prescribed, patients on her ward and colleagues.

(d) Dr Emmerson had no appreciation of the extent to which she had failed to discharge her professional responsibilities.

(e) Dr Emmerson presented an ongoing risk to the public and profession.

_{“In short ... she is not safe”.}¹⁷

¹⁴ _{A Professional Conduct Committee v Emmerson, above n 1, at [64].}

¹⁵ _{At [102].}

¹⁶ _{At [102.2].}

¹⁷ At [102.5].

[28] The Tribunal ordered cancellation of Dr Emmerson’s registration. It declined permanent name suppression but granted interim name suppression to protect the position in the event of an appeal.

Procedural grounds of appeal

[29] Mr Muston filed extensive submissions on Dr Emmerson’s behalf. Mr Muston contended the PCC should not have laid charges as the complaints were the product of longstanding hostility against Dr Emmerson from her supervisor, Dr van Altvorst, and Dr Humberstone, another senior doctor. Mr Muston argued the PCC was blind to the acrimony directed at Dr Emmerson, and failed to adequately investigate the complaints. Disclosure errors allegedly compounded these failings, as did other unsubstantiated allegations against Dr Emmerson. For example, Dr van Altvorst said Dr Emmerson had been under the influence of substances to such an extent she was walking into walls at the hospital.

[30] For the PCC, Mr La Hood contended these process challenges were “misconceived” as the Tribunal’s role was confined to determining if the charges were proved, and if so, penalty. Likewise this Court’s role on appeal. Mr La Hood submitted it would have been open to Dr Emmerson to challenge the PCC’s processes by way of judicial review, but that means of redress was no longer available. Mr La Hood invited attention to the statute, which limits appeal rights to

“a finding” of professional misconduct and attendant penalty.¹⁸

[31] It is undesirable given common law methodology to resolve the extent to which procedural matters may be taken on an appeal of this nature. Little real argument was advanced on this important topic; Mr La Hood’s contentions were not developed beyond observations. It is also unnecessary to do so. This is because very few material facts were contested during the investigative process, before the Tribunal or on appeal. And because liability, and hence penalty, largely rested on

_{facts advanced or accepted by Dr Emmerson.}

¹⁸ Health Practitioners Competence Assurance Act 2003, s 106(2)(a).

[32] To elaborate, when interviewed by the PCC, Dr Emmerson accepted she had prescribed drugs of dependence to people with whom she had a close personal or professional relationship. And to periodic consumption of cannabis. Dr Emmerson also accepted using methamphetamine once, albeit overseas. Before the Tribunal, Dr Emmerson filed an extensive notice of admitted facts, which records:

ADMISSION OF FACTS BY PRACTITIONER Professional background

1. Dr Lynda Marie Emmerson graduated with an MB ChB from Otago

University in 2012. Dr Emmerson was provisionally registered on

26 November 2012 and obtained registration in a general scope of practice on 27 November 2013.

2. Dr Emmerson was employed by Northland DHB and began working as a house surgeon at Whangarei Hospital in December 2012. In March

2014, she started working on the Tumanako (adult mental health inpatient) unit at Whangarei Hospital. In December 2014, she started

work as a Psychiatric Registrar at Whangarei Hospital.

3. Dr Emmerson does not currently hold an annual practising certificate.

Her practising certificate expired on 30 November 2015.

Relationship with [B]

4. Dr Emmerson has been in a de facto relationship with [B] for approximately four years.

[B]’s drug use

5. In a written statement provided to the Professional Conduct Committee (PCC) on 10 December 2015, Dr Emmerson stated that when her relationship with [B] broke up in March 2014, he briefly started using methamphetamine to cope with what was going on. At paragraph [146] Dr Emmerson stated:

“[B] is not addicted to any drugs. He has at times in his past used various drugs but since we got together the only time I was ever aware of him using anything beyond the odd joint of cannabis was when we broke up over a year before this incident. He used methamphetamine on and off for around 6 weeks. ... [B] has no criminal record and he has no history of addiction or drug seeking behavior on his medical records.”

[B]’s medical history

6. On 19 November 2015, Bush Road Medical Centre provided the PCC [B]’s medical records. [B] enrolled at Bush Road Medical Centre on

24 July 2015. Prior to that time, his GP was Dr Hilary Wyatt from West

End Medical Practice.

7. Dr Wyatt had prescribed [B] (amongst other things) DHC Continus, zopiclone, tramadol, diazepam, augmentin, salbutamol, and omeprazole.

Prescription to [B]

8. On 9 September 2013, Dr Emmerson prescribed [B] 60 x 50 mg tramadol capsules, with two repeats.

9. On 20 June 12014, Dr Emmerson prescribed [B] 240 x 50 mg tramadol capsules.

10. On 21 November 2014, Dr Emmerson prescribed [B] DHU Continus (dihydrocodeine tartrate) 120 x 60 mg long-acting tablets, with two repeats.

11. On 22 February 2015, Dr Emmerson prescribed [B] 30 x 5 mg diazepam tablets.

12. On 1 March 2015, Dr Emmerson prescribed [B] 30 x 5 mg diazepam tablets.

13. On 20 April 2015, Dr Emmerson prescribed [B]:

(a) 10 x 60 mg long-acting M-Elson (morphine sulphate) tablets with one repeat; and

(b) 20 x 20 mg immediate-release Sevredol (morphine sulphate)

tablets with one repeat.

14. Morphine sulphate is a Class B controlled drug under the Misuse of Drugs Act 1975. Diazepam and DHU[sic] Continus (dihydrocodeine tartrate) are Class C controlled drugs pursuant to the Misuse of Drugs Act 1975. These medicines are drugs of dependence and/or abuse.

15. Between 16 February 2013 and 30 April 2015, Dr Emmerson also prescribed [B] pantoprazole, omeprazole, amoxicillin, prednisone, ferrous fumarate, flucloxacillin, and salbutamol.

16. In her submissions to the Medical Council dated 21 May 2015, Dr Emmerson stated that she had attended several GP consultations with [B], so she was aware of his medical history. Dr Emmerson stated that [B] had previously been prescribed M-Eslon and Sevredol, and that is why she prescribed them again.

Prescription to [V]

17. [V] is [B]’s mother.

18. On 2 September 2013, Dr Emmerson prescribed [V] 20 x 1 mg Lorazepam tablets, which had not previously been prescribed to her. She also prescribed amoxicillin.

19. Lorazepam is a Class C controlled drug pursuant to the Misuse of Drugs

Act 1975. It is a drug of dependence and/or abuse.

20. On 1 October 2014, Dr Emmerson prescribed [V] 240 x 50 mg tramadol capsules. She also prescribed doxycycline.

Prescription to [K]

On 22 April 2015, Dr Emmerson prescribed Lorazepam 1 mg tablets to [K]. [K] was a nurse in the Tumanako unit and a colleague of Dr Emmerson.

Recreational drug use

Hair test

21. In June 2015, Dr Emmerson provided a hair sample to the Medical Council Health Committee. The hair sample related to the period between approximately 18 February 2015 and 19 May 2015. This sample detected 0.07 ng/mg of delta8-tetrahydrocannabinol in Dr Emmerson’s hair.

22. The sample returned a negative result for methamphetamine.

[33] Dr Emmerson gave evidence by way of a brief of evidence and oral evidence, including cross-examination. Again, she accepted prescribing drugs of dependency, and using cannabis and methamphetamine, the latter on several occasions in New Zealand.

[34] Unsurprisingly, the Tribunal relied heavily on Dr Emmerson’s various accounts—to the PCC and before the Tribunal, including her notice of admitted facts and brief of evidence—in determining the charges. And as observed, little material was disputed, save for whether Dr Emmerson intentionally misled the PCC about her use of methamphetamine in New Zealand.

[35] On appeal, Dr Emmerson did not seek to resile from anything she said below, either to the PCC or Tribunal. Rather, Dr Emmerson contended her account to the PCC in relation to methamphetamine was the product of confusion and stress.

[36] Consequently, the various procedural points raised by Mr Muston have little purchase, for, as observed, the case was decided largely on facts advanced by Dr Emmerson or accepted by her. So, even if, for example, the complaints to the Medical Council reflected professional hostility to Dr Emmerson, liability for professional misconduct turned ultimately on Dr Emmerson’s voluntary statements in relation to the complaints and then charges. This leaves two discrete procedural points. Both concern the Tribunal.

[37] The Northland District Health Board ended Dr Emmerson’s employment in May 2015. Dr Emmerson lodged personal grievance proceedings with the Employment Relations Authority. She was unsuccessful. The decision of the Authority was placed before the Tribunal. Mr La Hood invited the Tribunal to rely on some of the Authority’s factual determinations. The Tribunal acknowledged reading the decision but considered it did not need to rely on it “in the way

suggested”.¹⁹

[38] Mr Muston contended the Authority’s decision was “extremely prejudicial” to Dr Emmerson, and the Tribunal might have placed some reliance on it. Mr Muston also noted the Tribunal referred to Dr Emmerson’s appeal in relation to the decision having been dismissed by the Employment Court, when in fact that Court has not yet determined Dr Emmerson’s appeal.

[39] The Tribunal’s decision makes clear its observation about the Employment

Court appeal was merely that. In context, its remark reads:²⁰

The Practitioner unsuccessfully pursued a personal grievance and the decision of the Employment Relations Authority was in evidence before the Tribunal. Indeed, Mr La Hood submitted that we were entitled to and should treat certain findings of fact in the ERA decision as evidence. We have of course read the decision. We do not think we need to rely on it in the way suggested. For completeness, we record that we were told by the Practitioner during the course of this hearing that she regarded the process adopted by the ERA as unfair, and had filed an appeal. Since the hearing, the Tribunal has become aware that the Practitioner’s appeal has been dismissed by the Employment Court (though neither the Chair nor any other member of the Tribunal has read the Court’s judgment).

[40] Mr Muston submitted the influence of the Authority’s decision on the Tribunal was “unclear”. However, the Tribunal said it did not need to rely on the decision. And, the Tribunal did not mention it elsewhere. So, on the face of the Tribunal’s decision, the Authority’s decision had no effect. The evidence supports this conclusion. Again, everything came from Dr Emmerson. This likely explains why the Tribunal said it did not need to rely on the decision. For the same reasons, the Tribunal’s erroneous statement Dr Emmerson’s appeal had been dismissed is

_immaterial.

¹⁹ _{A Professional Conduct Committee v Emmerson, above n 1, at [21].}

²⁰ At [21].

[41] Mr Muston also contended Dr van Altvorst should have been called as a witness before the Tribunal. It will be recalled Dr van Altvorst was Dr Emmerson’s supervisor, and on her case, the source of many of Dr Emmerson’s professional problems. Dr van Altvorst chose not to be involved with the PCC’s investigation, citing “stress” caused by Dr Emmerson.

[42] Mr La Hood responded the Tribunal heard from Dr Humberstone, another senior doctor at Whangarei Hospital. He noted matters of background were before the Tribunal. So too a witness who could speak to at least some of those if necessary.

[43] I accept the absence of a potentially relevant witness in a professional disciplinary context could in some circumstances give rise to unfairness to the impugned practitioner. However, I do not accept Dr Emmerson suffered prejudice by Dr van Altvorst’s absence. As observed earlier, all of the material evidence ultimately came from Dr Emmerson herself. This addresses the point at the heart of this complaint: Dr van Altvorst made inaccurate and unfounded allegations about Dr Emmerson. Moreover, Dr Emmerson could have asked the PCC to call Dr van Altvorst as a witness, and if it declined to do so, applied to the Tribunal for

Dr van Altvorst to be summonsed.²¹ Dr Emmerson did not do so.

[44] The procedural challenges fail.

Challenges to liability

[45] Mr Muston contended the Tribunal erred in finding:

(a) Negligence vis-à-vis Dr Emmerson’s drug prescription.

(b) “Recreational” drug use would bring discredit to the profession.

(c) Dr Emmerson deliberately misled the PCC, hence the related discreditable conduct finding could not be sustained.

²¹ Health Practitioners Competence Assurance Act, sch 1, cl 8.

Dr Emmerson’s prescription of drugs

[46] Mr Muston advanced a number of related points on this issue. He observed Dr Emmerson made notes in connection with the prescriptions and consulted an out-of-date edition of Medical Practice in New Zealand before making them. Mr Muston submitted the Tribunal’s attention was deflected by the “odd” circumstances in connection with the prescription to the nurse, which meant it did not focus on Dr Emmerson’s requests to Dr van Altvorst for advice in this context, or her lack of supervision of Dr Emmerson. Mr Muston noted the recipients of the drugs had not complained about Dr Emmerson’s actions. He also submitted the Medical Council’s guidelines should not have been treated as definitive.

[47] Mr Muston also referred to evidence given by Dr Holdaway, a practitioner called by Dr Emmerson before the Tribunal. Dr Holdaway explained her approach to resolving ethical dilemmas: she has regard to what she described as “basic ethical principles” and, if necessary, consults colleagues and literature. In cross-examination, Dr Holdaway said it is not her practice to consult the guidelines. Mr Muston submits this evidence is indicative of how medical practitioners address ethical issues. He submits Dr Emmerson, a junior doctor, should not be held to higher standards than those adopted by senior practitioners. Mr Muston submits the cumulative force of these points means Dr Emmerson’s conduct in prescribing those close to her did not fall sufficiently short of acceptable standards to warrant disciplinary action.

[48] The logical starting point is the guidelines issued by the Medical Council. Its Statement on providing care to yourself and those close to you (issued June 2014) provides:²²

The following are specific situations when you must not treat yourself, family members, people you work with and friends:

...

_{Prescribing or administering drugs of dependence.}

22. Medical Council Statement on providing care to yourself and those close to you (June 2014) (emphasis added).

[49] The Medical Council’s (April 2010) statement on Good prescribing practice

is similar:²³

Avoid writing prescriptions for yourself or those with whom you have a close personal relationship. It is never appropriate to prescribe or administer drugs of dependence or psychotropic medication to yourself or someone close to you.

[50] While not every departure from the guidelines will establish professional misconduct, the position in relation to drugs of dependence is unequivocal. Put simply, doctors must not prescribe these drugs to family members, friends or close colleagues, because it is inappropriate to do so. The reason is obvious: “an objective assessment of the patient and the medical condition is necessary for good practice

and care”.²⁴ And, as the guidelines recognise, the need for objectivity is especially

high when drugs of dependence are concerned. Again, the reason is obvious: drugs of dependence can be misused, hence their status. Consequently, only exceptionally will the prescription of drugs of dependence to friends, family members or colleagues not amount to serious misconduct.

[51] Dr E is instructive.²⁵ There, a doctor diagnosed his de facto partner with depression. He prescribed anti-depressants and pain relief. Dr E wrote approximately 50 prescriptions over a three-year period. Notably, Dr E’s partner had previously been prescribed antidepressants. The operative guidelines were similar. The Tribunal considered the role of the guidelines in assessing whether Dr E’s conduct amounted to professional misconduct. It said:²⁶

As a general proposition, the Tribunal observes that not all breaches of a MCNZ statement will necessarily constitute professional misconduct; obviously a fact specific analysis is required and an assessment made of the seriousness of the departure. But such guidelines are a helpful indicator of proper practice and ethical standards.

[52] Dr E claimed he was unaware there was a prohibition on prescribing drugs to

_{family members. Rather, he understood the rule was an “issue of good practice”.}

²³ _{Medical Council Good Prescribing Practice (April 2010) (emphasis added).}

²⁴ _{Medical Council Good Prescribing Practice (April 2010).}

²⁵ _{PCC v Dr E 136/Med07/76D, 3 December 2007.}

²⁶ At [50].

The Tribunal rejected the submission Dr E’s conduct did not warrant discipline.

First, public protection required:²⁷

... the observance of proper professional boundaries, which could readily apply in a future situation involving Dr E, whether it was one relating to a family member, a work colleague, or a patient seen in his surgery.

[53] Second, it was “important that this practitioner, and all practitioners, appreciate the importance of the issues which arose” in that case.²⁸

[54] Dr E involved a much greater number of prescriptions. But there were fewer recipients in that case. This case and it are otherwise similar.

[55] None of the various points advanced by Mr Muston on appeal, either individually or in toto, calls into question the Tribunal’s finding on this charge. While these points have arguable relevance to penalty, they do not establish error in relation to liability. First, whether the prescriptions were justified clinically is beside the point. In the ordinary run of cases, liability attaches—without more—to the prescription of drugs of dependence to those with whom the doctor has a close relationship. The protective nature of the prohibition necessarily precludes evaluation of the conduct from a clinical perspective, at least at this stage of the analysis.

[56] Second, Dr Emmerson’s rudimentary inquiries do not absolve her of liability. Reference to the guidelines would have alerted Dr Emmerson to the impropriety of her conduct. And, a key aspect of being a professional is knowledge of professional standards. Equally, the “disciplinary process in part is one of setting standards”.²⁹

[57] Third, the Tribunal was entitled to place little weight on Dr Holdaway’s evidence. Dr Holdaway’s approach to the resolution of ethical dilemmas did not include the guidelines. That approach was not indicative of best practice. Nor was it strictly relevant to the ultimate issue: whether the prescription of drugs of

_{dependence to friends, family and colleagues is professional misconduct. To the}

²⁷ _{PCC v Dr E, above n 25, at [65](a).}

²⁸ _{At [65](b).}

²⁹ B v Medical Council [2005] 3 NZLR 810 at 810-811.

extent Dr Holdaway suggested the prescription of drugs of dependence to these categories of associates was a “grey area”, the Tribunal was entitled to disagree. The relevant guidelines are unambiguous, in turn reflecting the need for clear ethical boundaries in this area.

[58] Fourth, the “odd” circumstances in connection with the prescription to the nurse do not bear on liability. And, this argument is a species of the process complaints already dealt with.

[59] Fifth, Dr Emmerson prescribed drugs of dependency in the period during which she was regularly using both cannabis and methamphetamine. More about this below.

Dr Emmerson’s “recreational” drug use

[60] Mr Muston submits Dr Emmerson’s “recreational” drug use would not bring discredit to the profession and should not have attracted disciplinary sanction. Mr Muston submitted it is contrary to public policy to expect a practitioner to engage candidly with the health committee only to then face disciplinary charges arising out of that engagement. He submits there would not have been a sufficient evidential foundation for the charges were it not for Dr Emmerson’s disclosures to the committee. Mr Muston submits the Tribunal’s decision sets a dangerous precedent, for, it may discourage practitioners struggling with drug dependency from engaging honestly with the health committee, in turn jeopardising public safety.

[61] Mr Muston also contends Dr Emmerson’s drug use did not imperil patient safety. Dr Emmerson’s drug use occurred in private; she was not under the influence of drugs at work. He emphasises Dr Emmerson’s drug use did not lead to any criminal convictions. Mr Muston submits the Tribunal was wrong to equate occasional use of methamphetamine with serious criminal conduct.

[62] The arguments directed at the relationship between the health committee and Tribunal can be dealt with briefly. The letter sent to Dr Emmerson about the health committee informed her of the possibility relevant information would be passed to the PCC. And that is exactly what happened. Section 76 of the Health Practitioners

Competence Assurance Act 2003 (the Act) provides the PCC may receive as evidence any statement, document, information, or matter that, in its opinion, may assist it to deal effectively with the subject of its investigation, “whether or not that statement, document, information, or matter would be admissible in a court of law”.

[63] I accept it is arguable disciplinary action in consequence of a health committee’s involvement could operate to discourage a practitioner from engaging openly with the committee. However, this possibility is inherent to the process—it does not result from the Tribunal’s finding in this case. Furthermore, neither in the Tribunal nor before me did Mr Muston contend it was unlawful for the PCC to

receive material from the health committee.³⁰ Section 76 is an obstacle to that

proposition.

[64] The balance of Mr Muston’s argument in relation to Dr Emmerson’s drug use reduces to the proposition so-called “recreational” methamphetamine use should not, without more, constitute professional misconduct. There are several answers to this contention.

[65] Methamphetamine is a controlled drug. It is an offence to possess, consume, smoke or otherwise use any controlled drug.³¹ The law makes no provision for the “recreational” use of methamphetamine, or indeed any controlled drug. Possessing or consuming methamphetamine is punishable by up to six months’ imprisonment.³²

Methamphetamine is a pernicious and highly addictive drug, hence its classification as a Class A controlled drug. This Court sees, daily, its harmful effects. These extend beyond users to the community more generally. It is destructive.

[66] Dr Emmerson was practising in psychiatry at the time, an area of medicine frequently concerned with drug abuse. It is hypocritical for a medical doctor to be promoting others’ good health, mental or physical, while “recreationally” using controlled drugs. And professionals carry the burden of accepting the distinction

_{between their personal and professional lives can be finer than for others.}

³⁰ Mr Muston did not argue Dr Emmerson’s statements to the health committee were privileged.

Under s 78(2) of the Act, a person is not required to provide any information or produce any document that would be privileged in a court of law.

³¹ _{Misuse of Drugs Act 1975, s 7(1).}

³² Section 7(2).

[67] Consequently, while Dr Emmerson did not use methamphetamine at work or in relation to her practice, there are difficulties in seeking to quarantine use of controlled drugs as “recreational”, and as somehow beyond the purview of professional sanction.

[68] Furthermore, the Tribunal is comprised of medical practitioners and a lay representative for the very purpose of assessing a practitioner’s conduct against professional standards expected by both the medical profession and public. The Tribunal’s views on this issue are a proxy for the public’s legitimate expectation doctors will not use methamphetamine—or other controlled drugs. It was therefore open to the Tribunal to condemn Dr Emmerson’s drug use as conduct falling appreciably short of the standards expected of a medical professional.

[69] Dr Emmerson’s lack of criminal conviction is irrelevant. A criminal conviction is not what warrants sanction here; it is Dr Emmerson’s use, on several occasions, of methamphetamine and cannabis. Mr Muston cited cases from Australia and United Kingdom which, he submitted, demonstrate a conviction is required in this context. More about those later. For the moment, it is sufficient to observe the Act does not require a criminal conviction. The legislation identifies discrete “grounds on which health practitioners may be disciplined”. Two of these refer to species of professional misconduct. The first concerns malpractice or negligence. The second concerns any conduct likely to bring discredit to the profession. Convictions for criminal offences are dealt with under a separate ground: s 100(1)(c) of the Act provides a practitioner may be disciplined for any conviction which reflects adversely on his or her fitness to practice. The disjunctive nature of the grounds under s 100 of the Act addresses the submission a conviction is required before professional misconduct is established.

[70] The submission Dr Emmerson’s drug use could not bring discredit to the profession because her conduct was “private” is unsustainable. Taken to its logical extent, this argument involves the unattractive proposition professionals may do anything in private, so long as their conduct was intended to remain that way.

[71] The privacy argument would also frustrate the Act. To elaborate, the Tribunal’s functions include setting and maintaining professional standards. Disciplinary proceedings are in part prophylactic. Indeed, the principal purpose of the Act is to provide for mechanisms to ensure health practitioners are competent and fit to practice.³³ It would be contrary to the Act’s objective if disciplinary action were only available once the public became aware of the conduct in question. For this reason, when assessing the conduct in question, the Tribunal asks “whether reasonable members of the public, informed and with the knowledge of all the

factual circumstances, could reasonably conclude that the reputation and good

standing of the ... profession was lowered”.³⁴

[72] Mr Muston submits there has never been an instance before the Tribunal in which a practitioner has been charged because of drug use. That is not determinative. It simply means the appeal must be decided without the assistance of direct authority.

[73] To conclude, the Tribunal did not err in finding Dr Emmerson’s drug use

amounted to professional misconduct. Plainly, it did.

Misleading the PCC

[74] It will be recalled Dr Emmerson told the PCC she had used methamphetamine in Fiji (once) but had not used the drug in New Zealand. When asked in writing to explain the discrepancy between these statements and her earlier statements to the health committee, Dr Emmerson replied by email she “stood by” her statements to the PCC, citing the results of her drug test as confirmation of her “veracity”.

[75] Dr Emmerson accepts she misled the PCC but contends she did not do so deliberately. Mr Muston argues the Tribunal erred to find otherwise. He submits Dr Emmerson was anxious before the PCC; had then only recently engaged a lawyer; and had been forced out of her home due to the financial burden of

_{unemployment. Mr Muston submits Dr Emmerson had not anticipated questions}

³³ _{Health Practitioners Competence Assurance Act, s 3(1).}

³⁴ Collie v Nursing Council of New Zealand, above n 6, at [28].

about her drug use as she reasonably believed this issue had been resolved by the health committee. Against this background, Mr Muston submits Dr Emmerson made a confused error when she told the PCC she had only smoked methamphetamine while out of the country; there was no intention to deceive.

[76] Mr Muston contends Dr Emmerson’s subsequent email was “grounded in fear that such a mistake had created an insurmountable hurdle and that if she acknowledged she messed up then doubt would be cast over all of her evidence”. Mr Muston emphasises Dr Emmerson’s candour in dealing with the health committee process. He submits totality of circumstance renders the Tribunal’s finding unsustainable.

[77] Appellate Courts rightly hesitate before interfering with factual conclusions, especially those grounded in credibility determinations.³⁵ While demeanour-based factual assessment can be unreliable,³⁶ Courts of appeal have long recognised the inestimable advantages enjoyed by first instance Courts and tribunals seeing and hearing witnesses, and their like advantage in observing a case unfold. None of this can be recreated by the record, which remains as the Privy Council once observed, “the dead body of the evidence, without its spirit”.³⁷

[78] The various points advanced by Mr Muston were made by Dr Emmerson in the witness box before the Tribunal. It rejected them, observing:³⁸

The Practitioner lied to the PCC, saying that she had only used the drug once when abroad. It was not until she filed her admission on 20 September 2016 that she acknowledged the extent of her methamphetamine use. Even during the course of the hearing the Tribunal had to endure the unedifying spectacle of the practitioner prevaricating when it was put to her that she had lied to the PCC about this.

[79] These conclusions were available. The PCC told Dr Emmerson on 18 August

2015 it was investigating her “recreational drug use”. Dr Emmerson knew what she

_{had said about this to Dr Page on behalf of the health committee; indeed,}

³⁵ _{Austin, Nichols & Co v Stichting Lodestar, above n 2, at [5].}

³⁶ _{Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116.}

³⁷ _{R v Bertrand (1867) LR 1 PC 520 at 535 per Sir John Coleridge.}

³⁸ A Professional Conduct Committee v Emmerson, above n 1, at [65].

Dr Emmerson replied by email to Dr Page’s report.³⁹ And, Dr Emmerson underwent a drug test. It is correct the health committee later told Dr Emmerson it did not consider she had an ongoing drug problem, but Dr Emmerson had also been informed, in writing, the PCC could seek information relevant to its investigation, and one function of the health committee was “to protect the health and safety of the public”. Dr Emmerson’s contention of surprise vis-à-vis PCC questioning on this topic needs to be examined in this light.

[80] Moreover, confusion and stress do not readily explain Dr Emmerson’s responses. The topic was neither complex nor a matter of the distant past. Dr Emmerson was simply asked whether she had ever used methamphetamine in New Zealand.

[81] Subsequent events do not assist Dr Emmerson. On 19 February 2016 the PCC recorded in writing how it believed she had misled it in relation to her methamphetamine use. As set out at [19], the PCC’s letter identified all material events to that point, including Dr Emmerson’s responses. The letter concluded by inviting Dr Emmerson to “advise the PCC on how many occasions you have used methamphetamine in the past”.

[82] Dr Emmerson’s responded by email on 21 March 2016. As will be recalled, she said: “I stand by my comments I made to you at our meeting and believe that my drug test confirms the veracity of such statements. I do not wish to make any further comment in this regard”. Dr Emmerson’s response was unequivocal. And consistent only with intentional deceit. No other finding was available on this aspect.

[83] As the Tribunal observed, misleading the PCC is a serious departure from professional standards. The Medical Council’s statement on Good Medical Practice refers specifically to an expectation doctors will engage honestly with formal inquiries.⁴⁰ Doctors must “work cooperatively with, and be honest, open and constructive in [their] dealings with managers, employers, the Medical Council, and

_{other authorities”. Similarly, they “must cooperate fully with any formal inquiry or}

³⁹ _{See [14].}

⁴⁰ Medical Council Good Prescribing Practice (April 2010).

inquest”. While doctors are entitled to claim privilege against self-incrimination,

when they provide information, they “must be honest, accurate, objective”.

[84] Dr Emmerson’s comments to the PCC were an attempt to minimise her drug use, no doubt motivated by fear of consequence. Her attempt to mislead the PCC fell well short of the professional standards expected of medical practitioners. It was open to the Tribunal to find this aspect of charge two established, and as observed, a conclusion of intentional deceit in relation to Dr Emmerson’s written response was the only conclusion available on the evidence.

Challenges to penalty

[85] Mr Muston submits the Tribunal:

(a) Failed to give due consideration to Dr Emmerson’s prospects of rehabilitation, and failed to balance those prospects against the punitive impact of penalty.⁴¹

(b) Failed to adequately consider and explain why a lesser penalty would not suffice.

(c) Erred in finding Dr Emmerson posed a public safety risk.

Approach on appeal

[86] An antecedent issue arises. It is whether Dr Emmerson’s appeal against penalty is a general appeal or an appeal against discretion. Expressed more fully, the issue is whether Dr Emmerson is entitled to receive independent judgment on the merits of the penalty issue,⁴² or whether she must identify reversible error in terms of the well-established criteria identified in May v May.⁴³

[87] Mr La Hood submits the proper approach is to treat a penalty appeal as one against discretion. Less than a decade ago, this was the law. For instance, in the

⁴¹ _{Mr Muston advanced these arguments as separate grounds of appeal. I consider them together.}

⁴² _{Austin, Nichols & Co Inc v Stichting Lodestar, above n 2.}

⁴³ May v May (1982) 1 NZFLR 165 (CA) at 170.

2009 case of Bhanabhai v Auckland District Law Society, a Full Court of the High Court determined professional misconduct findings are subject to general appeals but appeals against penalty are appeals against discretion.⁴⁴ Several High Court decisions followed suit,⁴⁵ including Roberts v A Professional Conduct

_{Committee of the Nursing Council of New Zealand in which Collins J said:}⁴⁶

The distinction between an appeal from the exercise of discretion, and a general appeal is not always clear. However, in my assessment the penalty decision in this case involved the exercise of discretion by the Tribunal. I have reached this conclusion because, when deciding what penalty to impose the Tribunal evaluated a wide range of factors, including the penalty options that were available. The process of evaluating penalty options and deciding what penalty to impose involved an exercise of discretion by the Tribunal in the same way that a decision about bail or name suppression also involves the exercise of discretion by judicial officers. All involve the careful evaluation of options and the choosing of the most suitable option that is available. In this respect, the Tribunal’s penalty decision can be distinguished from its role when interpreting the law, deciding facts and/or applying the law to established facts when determining if a practitioner has committed a disciplinary offence. That aspect of the Tribunal’s role does not involve the exercise of discretion.

[88] But in 2013 the tide turned. Two decisions of the Full Court of the High Court signalled a change in approach. In Hart v Auckland Standards Committee (1) of New Zealand Law Society, Winkelmann and Lang JJ concluded the Court must come to its own view of the merits on both misconduct and penalty.⁴⁷

Shortly after, in Sissons v Standards Committee (2) of the Canterbury-Westland

Branch of the New Zealand Law Society, Panckhurst, Chisholm and Whata JJ considered penalty decisions to “require an assessment of fact and degree and entail a value judgment ... such that it is incumbent upon the appellate Court to reach its

_{own view”.}⁴⁸

⁴⁴ _{Bhanabhai v Auckland District Law Society [2009] NZHC 415; [2009] NZAR 282 (HC) at [33].}

⁴⁵ See for example: Joseph v Professional Conduct Committee [2013] NZHC 1131; Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354; GS v Professional Conduct Committee HC Auckland CIV-2009-404-998, 17

_{September 2009; Katamat v Professional Conduct Committee [2012] NZHC 1633 at [37]–[38].}

⁴⁶ Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 45, at [43].

⁴⁷ Hart v Auckland Standards Committee (1) of New Zealand Law Society [2013] NZHC 83, [2013]

_{3 NZLR 103 at [12].}

⁴⁸ Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law

Society [2013] NZHC 349, [2013] NZAR 416 at [15].

[89] Subsequent High Court decisions followed this approach.⁴⁹ Two engaged the issue at length: Rabih v A Professional Conduct Committee of the Dental Council and TSM v Professional Conduct Committee.⁵⁰

[90] In Rabih Brown J concluded an appeal against penalty was a general appeal for two reasons. First, Brown J did not consider there should be a difference in the approach of the High Court to the determination of appeals from different professional disciplinary tribunals. His Honour held there was no principled basis for concluding a penalty in a health professional context is discretionary while in a legal practitioner context it is subject to a general right of appeal.⁵¹ Second, Brown J was of the view “the decision about the penalty to be imposed on a professional person by the relevant professional body should be one of relative uniformity and consistency”.⁵² Brown J did not consider “such a decision is one where differently constituted tribunals should legitimately reach widely different decisions in relation to equivalent conduct”.⁵³

[91] Palmer J’s decision in TSM v Professional Conduct Committee is similar. There, His Honour considered “the rule of law requires that the application of law in imposing a penalty must involve at least a modicum of transparency, certainty and predictability”.⁵⁴ This requirement, Palmer J continued, “favours the explicit application of identified legal methodology and principles to shape what may otherwise become the relatively arbitrary exercise of discretion”.⁵⁵

[92] Mr La Hood submits the earlier approach espoused by Collins J in Roberts

should be preferred. He submits this approach recognises the imposition of penalty is not a scientific or mathematic exercise. Mr La Hood also draws an analogy with

⁴⁹ See for example: Professional Conduct Committee of the Dental Council v Moon [2014] NZHC

189 at [21]; Withers v Standards Committee No 3 of the Canterbury-Westland Branch of the New Zealand Law Society [2014] NZHC 611; Davidson v Auckland Standards Committee No 3 [2013] NZHC 2315, [2013] NZAR 1519; Singh v Director of Proceedings [2014] NZHC 189.

⁵⁰ Rabih v A Professional Conduct Committee of the Dental Council [2015] NZHC 1110 and

_{TSM v Professional Conduct Committee [2015] NZHC 306.}

⁵¹ _{Rabih v A Professional Conduct Committee of the Dental Council, above n 50, at [13].}

⁵² _{At [17].}

⁵³ _{At [17].}

⁵⁴ _{TSM v Professional Conduct Committee, above n 50 at [15].}

⁵⁵ At [15].

sentencing in the criminal context, in which appellate Courts will not interfere with a sentence in the absence of error.

[93] In my view, the sentencing analogy, while not perfect, is cogent. An appellate sentencing Court does not “just start afresh or substitute its own opinion for that of the original sentence”.⁵⁶ Rather, on appeal it must be shown there was an error “whether intrinsically or as a result of additional material submitted”.⁵⁷ A similar approach could be expected in relation to penalty appeals, for, in both the

sentencing and disciplinary contexts, there are a range of options available to the decision-maker, who must settle on one that best reflects the various purposes and principles underlying the assessment. And in both contexts, consistency with other cases is particularly important.

[94] Characterisation of penalty appeals as appeals against discretion does not prejudice the rule of law or lead to any intolerable inconsistency between the penalties imposed for equivalent conduct. To elaborate, a disciplinary tribunal must impose a penalty in accordance with settled legal principles. It must, for example, have regard to the purposes of disciplinary proceedings, balance the punitive impact of penalty against the practitioner’s prospects of rehabilitation, have regard to previous decisions to ensure consistency, consider all available options, and identify

a penalty which is fair, proportionate and reasonable.⁵⁸

[95] Categorisation of penalty appeals as appeals against discretion does not relieve the Tribunal of its duty to impose a penalty in accordance with principle. So, if a tribunal were to misdirect itself in terms of applicable principle or fail to take a relevant consideration into account, its decision would be amenable to successful

challenge.⁵⁹ Similarly, if a Tribunal were to reach a decision that is plainly wrong,

that too would result in reversal. Equally, an appellate Court may interfere with the exercise of a discretion that has led to a substantial disparity between penalties for equivalent conduct. But the margin of restraint required by the May v May appellate

_{principles recognises a proper element of discretion exercised by the Tribunal in}

⁵⁶ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.}

⁵⁷ _{At [30].}

⁵⁸ _{Roberts v Professional Conduct Committee, above n 45.}

⁵⁹ Joseph v Professional Conduct Committee, above n 45, at [39(a)].

setting a penalty.⁶⁰ Here, the sentencing analogy should alleviate concerns— appellate principles in that context could hardly be said to have eroded the rule of law, especially when the Criminal Procedure Act 2011 now encapsulates this very approach ⁶¹

[96] As against all this, the authorities since Hart have consistently held penalty appeals are general appeals. To now hold otherwise would introduce the uncertainty warned of in Rabih and TSM. With considerable reluctance, I conclude penalty appeals are to be approached as general appeals; it would be unhelpful to swim against the tide. Consequently, it is not necessary for Dr Emmerson to identify reversible error in the sense described by May v May and its progeny. Rather, it is sufficient if Dr Emmerson persuades me a different penalty should have been imposed.

[97] Mr Muston approached this task by identifying alleged errors in the Tribunal’s approach. Given the discussion above, that was unnecessary, albeit not wrong either: for all the conceptual differences between general appeals and appeals against discretion, doubt attaches to whether practical differences are that great. The following analysis track’s Mr Muston’s approach, and then approaches the issue on an Austin Nichols basis.

Rehabilitation balanced against punitive effect of penalty

[98] The Tribunal has an obligation to consider rehabilitative prospects and adopt a rehabilitative approach when possible.⁶² Mr Muston submitted the Tribunal erred in relation to this obligation. He referred to Roberts in which Collins J said “where appropriate the Tribunal should endeavour to ensure that these investments are not permanently lost, provided of course that the practitioner is truly capable of being rehabilitated and re-integrated into the medical profession”.⁶³ Mr Muston contended the Tribunal failed to attach significance to the evidence implying a rehabilitative

_{approach was appropriate:}

⁶⁰ _{Joseph v Professional Conduct Committee, above n 45, at [39(c)].}

⁶¹ _{Criminal Procedure Act 2011, s 250(2)(a).}

⁶² _{Roberts v Professional Conduct Committee, above n 45, at [47].}

⁶³ Roberts v Professional Conduct Committee, above n 45, at [47].

(a) When Dr Emmerson became aware of a complaint to the Medical Council in relation to her mis-prescriptions, she gave a voluntary undertaking not to prescribe “any medications unless approved by a Council approved supervisor”.⁶⁴ Dr Emmerson now acknowledges “she got it wrong”, and has undertaken to educate herself in respect of her ethical responsibilities.

(b) Dr Emmerson agreed not to practice while the health committee investigated her drug use.

(c) Her drug use is historical. She tested negative for methamphetamine for the period 18 February 2015 to 19 May 2015—and negative for all illicit substances in January 2017. A Salvation Army Bridge Programme report said Dr Emmerson did not require drug rehabilitation as she was not addicted to drugs.

[99] Mr Muston’s arguments must be tempered with the following observations.

[100] First, Dr Emmerson’s voluntary undertakings and compliance with the disciplinary process must be balanced against her wilful deception of the PCC— twice.

[101] Second, it is important to understand the health committee’s conclusion for what it was—a conclusion there were no health impediments to Dr Emmerson practising medicine. As Mr La Hood submitted, this conclusion cannot be extrapolated to a conclusion Dr Emmerson is a fit and proper person to practise medicine. The Tribunal was not concerned with Dr Emmerson’s health. It was concerned with whether her conduct fell so short of professional standards cancellation of registration was appropriate.

[102] Third, the Tribunal acknowledged there may come a time when

_{Dr Emmerson should return to practice. It said:}⁶⁵

⁶⁴ _{Dr Emmerson signed this undertaking on 11 May 2015.}

⁶⁵ A Professional Conduct Committee v Emmerson, above n 1, at [103]–[104].

... We would not like to think that the medical career of this Practitioner, who we have described as intelligent and talented, and who obviously has the respect of a number of professional colleagues ... will come to an end permanently.

We can envisage a situation in which this Practitioner, after a period of time, during which she may perhaps be able to employ her talents in another direction and bring some stability to her life, might well be able to persuade the New Zealand Medical Council that she is fit to practise and obtain re- registration.

[103] However, the reference to the possibility Dr Emmerson may later return to practice was not to imply the Tribunal considered a penalty less than cancellation of registration would suffice. In the next paragraph, it referred to the desirability of Dr Emmerson taking a “significant period away from practice”. Suspension of a practising certificate is a short-term measure.

[104] Fourth, Dr Emmerson’s abstinence from drugs does not alter the fact her use of methamphetamine and cannabis was a grave breach of professional standards. Her drug use reflects adversely on her fitness to practise irrespective of whether she is now abstinent.

[105] Fifth, Dr Emmerson’s insight is at best partial. For example, Dr Emmerson’s brief of evidence to the Tribunal recorded her belief her drug use could not bring disrepute to the profession. Dr Emmerson has repeatedly attempted to minimise her conduct. For example, Dr Emmerson says “she feels totally let down” by the second charge. She finds “it disconcerting” information she provided to the health committee was used in evidence against her in the Tribunal. And, she still maintains she did not deliberately deceive the PCC. Dr Emmerson’s acknowledgement of wrongdoing in relation to prescribing drugs of dependency was also heavily qualified.

[106] No error arises under this head.

Would a lesser penalty suffice?

[107] It is clear the Tribunal should endeavour to impose the least restrictive penalty reasonably available in the circumstances. As Randerson J observed in Patel v Dentists Disciplinary Tribunal, “the Tribunal must consider alternatives

available to it ... and explain why lesser options have not been adopted in the circumstances of the case”.⁶⁶ Mr Muston submitted the Tribunal failed to do so. He contended the Tribunal erred in relying on the “cumulative effect” of the charges, because the conduct underlying each was independent of the other.

[108] Here the Tribunal said:⁶⁷

Overall acknowledging the assistance which Mr Muston’s submissions have provided us, we are minded to observe this case is one which involves three types of serious misconduct. Considering any one of them in isolation it is possible to contend that the Practitioner’s registration ought not to be in jeopardy. But when they are considered cumulatively, as we said in the introductory section of this decision, the fundamental issue for us is whether we can discharge our responsibilities to the public and the profession as we have described them while allowing this Practitioner to continue to hold registration.

[109] I consider the Tribunal cannot be faulted for considering the cumulative effect of the three species of misconduct: prescribing drugs of dependency; using methamphetamine and cannabis; and misleading the PCC. To impose a penalty by considering each charge in isolation would be artificial—and quite wrong. Each of the three species of misconduct reflected adversely on Dr Emmerson’s fitness to practise in different ways. The proved charges disclose a reckless approach to the discharge of ethical responsibilities; wilful deception of a professional body; and use of controlled drugs on several occasions.

[110] The multi-faceted nature of Dr Emmerson’s professional misconduct lies at the heart of the Tribunal’s decision to cancel her registration. Rehabilitation is an obvious option when misconduct is confined to one type, for, the practitioner can receive suitably targeted assistance. And, risk can be managed through tailored conditions. But disparate instances of misconduct make rehabilitation much more difficult. Risk to the public is also more difficult to manage. Multi-faceted misconduct also implies the possibility of underlying fundamental difficulties

_{vis-à-vis proper practice.}

⁶⁶ _{Patel v Dentists Disciplinary Tribunal HC Auckland AP77/02, 8 October 2002 at [31].}

⁶⁷ A Professional Conduct Committee v Emmerson, above n 1, at [99].

Dr Emmerson’s public safety risk

[111] Mr Muston objected to the Tribunal’s conclusion Dr Emmerson poses a

public safety risk. It said:⁶⁸

Our assessment is also that she presents an ongoing risk to the public and the profession. In short, our view is that she is not safe.

[112] Mr Muston submitted the Tribunal did not identify the nature of the risk or explain why cancellation of registration was the only way to protect against risk. He submitted there is no such risk. In his submission, the Tribunal “totally fails to address how given the practitioner’s exemplary record and shown ability to comply with conditions, cancellation was required to protect the public and the profession”.

[113] Public safety is a wider concept than Mr Muston’s submissions acknowledge. It encompasses the regulation of the medical profession to ensures its members render sound professional and ethical judgement. Thus, the question is not whether Dr Emmerson now understands the ethical boundaries of prescription. Or whether she is now abstinent from drugs. The question is whether these serious lapses in professional judgement—coupled with her repeated deception of the PCC—reflect so adversely on her fitness to practise nothing less than cancellation would suffice.

[114] It follows Dr Emmerson’s risk profile is more complex than Mr Muston’s analysis admits. As observed earlier, her misconduct had different aspects. In combination, these cast serious doubt over Dr Emmerson’s professional judgement. The Tribunal’s comment Dr Emmerson “is not safe” must be viewed through the prism of public safety as I have described it. Approached this way, the Tribunal’s conclusion was open on the evidence having regard to the different types of misconduct and Dr Emmerson’s responses to them.

The case law

[115] Mr Muston submitted cancellation of Dr Emmerson’s practising certificate is

_{out of step with authority, both here and abroad. His analysis focused primarily on}

⁶⁸ A Professional Conduct Committee v Emmerson, above n 1, at [102.5].

drug use. The Tribunal referred to three cases in which medical practitioners had dealt in controlled drugs:

(a) In Pulman a pharmacist was convicted of being a party to the manufacture of methamphetamine.⁶⁹ He had also been selling large quantities of pseudoephedrine. Unsurprisingly, the Tribunal ordered cancellation.

(b) In Cullen a medical practitioner misappropriated large quantities of pseudoephedrine by writing false prescriptions to patients.⁷⁰ The Tribunal found the pseudoephedrine had been misappropriated for an unlawful purpose and cancelled registration.

(c) In Dabous a medical practitioner was convicted on two charges relating to the possession of Class C and Class B drugs for sale. The Tribunal concluded “nothing short of deregistration would adequately denounce the Practitioner’s conduct”.⁷¹

[116] As the Tribunal observed, Pulman and Cullen are distinguishable. They provide little, if any, guidance as to the appropriate penalty for “recreational” drug use. Instead, the Tribunal relied on Dabous. It drew the following parallels:⁷²

... Like Dr Emmerson, the pharmacist in that case was unlawfully in possession of drugs. The mere fact that, there, the pharmacist had been charged and convicted does not appear to the Tribunal to be of great significance if all the elements of criminal offending are made out (and here of course they are admitted). It is true that in Dabous the practitioner was convicted of possession for supply, but, by the same token, that case did not involve class A drugs as this case does, and, of course, there is the added aspects in this case of the irregular prescribing and lack of candour.

[117] Mr Muston submitted there are few parallels between possession of a Class A controlled drug simpliciter and possession of Class B and C controlled drugs for supply. The maximum penalty for the former is six months’ imprisonment, whereas

⁶⁹ _{Re Pulman 375/Phar11/171P, 11 May 2011.}

⁷⁰ _{Re Cullen 139/Med06/44P, 6 December 2007.}

⁷¹ _{Re Dabous 695/Phar14/303P at [50].}

⁷² A Professional Conduct Committee v Emmerson, above n 1, at [84].

the maximum penalty for possessing a Class B controlled drug for supply is

14 years’ imprisonment.

[118] Mr Muston invited attention to cases in which medical practitioners had become addicted to various substances:

(a) In Craig a doctor wrote prescriptions for various drugs of dependence and used the drugs herself.⁷³ She was censured. Conditions were attached to her practising certificate for three years.

(b) In Hodgson a doctor was convicted of five charges of dishonestly using a document with intent to obtain prescription medicines.⁷⁴ The doctor wrote false prescriptions for drugs of dependence (17 times). He took the drugs himself. The conduct occurred over seven years. The Tribunal suspended the doctor for three months, and imposed conditions on his return to work.

(c) In T, a doctor wrote 54 false prescriptions for controlled drugs and consumed them herself.⁷⁵ The prescriptions were predominantly for codeine phosphate, to which she was addicted. The doctor was censured and conditions attached to her practising certificate for a period of three years.

[119] The Tribunal distinguished these cases:⁷⁶

There are of course examples of cases in which the MCNZ (and other comparable professional bodies) have taken a benign attitude to practitioners who have become addicted to various substances, and sought actively to assist them to get back into practice. But a feature of the evidence in this case was the Practitioner’s categorical denial that she has ever had a drug addiction, and it follows that she must be taken to have made a conscious choice, unaffected by compulsion, to use methamphetamine and cannabis during the time she was practising.

⁷³ _{Re Craig 844/Med16/348P, 5 September 2016.}

⁷⁴ _{Professional Conduct Committee v Hodgson 740/Med15/315P, 21 October 2015.}

⁷⁵ _{Re Dr T 636/Med14/272P, 30 June 2014.}

⁷⁶ A Professional Conduct Committee v Emmerson, above n 1, at [81].

[120] Mr Muston submitted the argument was illogical: every addict has at some point made a conscious decision to take drugs; it made no sense to punish Dr Emmerson for that decision—and later decision—to stop taking them. Mr Muston also referred to cases before the Lawyers and Conveyancers Disciplinary Tribunal in which drug use was insufficient to warrant deregistration:

(a) In Jefferies a lawyer was convicted in relation to possession of methamphetamine, bk-MDMA and possession of utensils.⁷⁷ He was suspended for six months, censured and ordered to submit to random drug testing.

(b) In Cropper a lawyer was given a three-month suspension for three charges of possession of methamphetamine.⁷⁸

(c) In Wootton a lawyer was convicted for possessing methamphetamine.⁷⁹ He was suspended from practice for 12 months.

(d) In Blair, a lawyer was convicted of selling cannabis.⁸⁰ He was suspended from practice for three years. The Tribunal drew a distinction between possessing drugs for personal use and sale. It said possessing drugs for sale is likely to result in deregistration.

[121] Mr Muston also referred to cases from Australia and the United Kingdom. Medical Board of Australia v Kanapathipillai has some similarity with Dr Emmerson’s case. There, a health practitioner admitted to using methamphetamine, MDMA and cannabis.⁸¹ She had earlier denied using these substances to the Medical Board of Australia. She was suspended from practice for two years and subject to conditions once she resumed practice.

[122] An analysis of this nature requires care to ensure like is being treated with like. Equally, it is dangerous to extract definitive statements of principle from

⁷⁷ _{National Standards Committee v Jefferies [2016] NZLCDT 29.}

⁷⁸ _{National Standards Committee v Cropper [2017] NZLCDT 6.}

⁷⁹ _{National Standards Committee v Wootton [2013] NZLCDT 43.}

⁸⁰ _{National Standards Committee v Blair [2015] NZLCDT 9.}

⁸¹ Medical Board of Australia v Kanapathipillai [2016] ACAT 16.

disparate sets of facts, especially when the penalty context is always fact-specific. To illustrate these points, Kanapathipillai involved a practitioner with a mental disorder, exacerbated, one assumes, by drug use. To borrow the language of Williams J from Jefferies, Wootton involved a narrative of a practitioner’s life spiralling out of control “both personally and professionally”. In Jefferies the lawyer lied to the Police about his drug use, albeit the conclusion seems to have been the was lie born “out of panic”. Williams J found Mr Jeffries now had “significant insight into his wrongdoing”. All three of these cases emphasise the respective practitioner’s problems and their various paths to redemption. All are distinguishable from this case.

[123] There is another reason why I am not persuaded the Tribunal was wrong to distinguish Dr Emmerson’s drug use from those cases involving drug addiction. It is inherent to the concept of addiction a person’s ability to resist is diminished because of their ongoing use of the addictive thing, whatever it may be. To that extent, choice is qualified. And culpability diminished. The Tribunal’s point was that Dr Emmerson emphasised the voluntary nature of her choice on each occasion she took either methamphetamine or cannabis.

[124] Moreover, by focusing on Dr Emmerson’s drug use, Mr Muston’s analysis does not address the decisive issue for the Tribunal: the cumulative effect of Dr Emmerson’s misconduct. The decision is clear this feature was determinative. The Tribunal noted the case “involves three types of serious misconduct”. Individual assessment of each left it “possible to contend that the Practitioner’s registration ought not to be in jeopardy”. However:⁸²

...when they are considered cumulatively, as we said in the introductory section of this decision, the fundamental issue for us is whether we can discharge our responsibilities to the public and the profession as we have described them while allowing this Practitioner to continue to hold registration.

[125] The Tribunal then cited the “cumulative effect of the various components of these charges” as the primary reason for deregistration. It said:⁸³

⁸² _{A Professional Conduct Committee v Emmerson, above n 1, at [99].}

⁸³ At [102.2].

... the Practitioner has ignored her responsibilities in terms of prescribing for family, friends and colleagues, used methamphetamine and cannabis during a period of time when she was in practice as a doctor, and deliberately set out to deceive the PCC. Not only has the Practitioner demonstrated an acute lack of judgment, but also an irresponsible attitude to complying with her professional obligations, the criminal law and the duty of candour which she owes to her professional organisation.

[126] To summarise, I am not persuaded the Tribunal’s decision to cancel Dr Emmerson’s registration was inconsistent with authority. And as observed, this argument is somewhat tangential; Dr Emmerson’s repeated use of methamphetamine and cannabis was a factor in the Tribunal’s decision, but deregistration did not turn on that conduct alone.

Final assessment

[127] After my own review of the merits, I am satisfied the Tribunal was correct to order cancellation of Dr Emmerson’s registration. My reasons here can be brief, for, they largely constitute restatement. Dr Emmerson is not, at present, a fit and proper person to practise medicine. I emphasise:

(a) The totality of misconduct. As the Tribunal observed, each individual thread of misconduct might have resulted in a different outcome. The cumulative effect is decisive.

(b) Methamphetamine use is serious. Consumption of the drug is a criminal offence punishable by imprisonment. Use of the drug is also conduct antithetical to the role of a medical practitioner.

(c) Dr Emmerson prescribed drugs of dependence in the same period as she repeatedly used both cannabis and methamphetamine.

(d) Dr Emmerson’s sought twice to deceive the PCC, including in writing. On the second occasion, Dr Emmerson was on notice the veracity of her account was in issue. The medical profession relies on the candour of practitioners to maintain professional standards—and to protect the public.

(e) Dr Emmerson’s at best partial acceptance of responsibility.

[128] I have not overlooked mitigating factors. Dr Emmerson tendered references to the Tribunal from colleagues and others. These spoke highly of her. At material times, Dr Emmerson had personal matters to address. Medical practice is inherently stressful—especially for those on the lower rungs of the profession. Whether Dr Emmerson received adequate support and supervision is not a matter on which I am in position to make any determination. But whatever the true position, this remains Dr Emmerson’s view. There is no evidence Dr Emmerson directly endangered public safety though her misconduct. This observation, however, should

be understood in light of my earlier remarks on this concept.⁸⁴

[129] Cancellation is the proportionate response. Medical practitioners are required to render ethical and professional judgement. Dr Emmerson’s failures across a broad suite of professional conduct necessitates cancellation to protect the public and maintain professional standards. Equally, cancellation does not preclude the possibility of Dr Emmerson returning, in time, to practice. The Tribunal recognised

as much.⁸⁵

Name suppression

[130] The Tribunal did not accept there were proper grounds to support an order for permanent name suppression. It did, however, suppress Dr Emmerson’s name for a month following its decision to allow her to lodge an appeal and seek interim orders in this Court in relation to publication.

[131] By Minute dated 23 June 2017, Toogood J made consent orders prohibiting publication of Dr Emmerson’s name until further Court order. Dr Emmerson did not challenge the Tribunal’s conclusion there are no proper grounds to support an order for permanent name suppression. Given the appeal is dismissed, there is no longer

_{any reason why the interim suppression orders should endure. They now lapse.}

⁸⁴ _{See [113]–[114].}

85. The Act imposes no minimum period in relation to cancellation, whereas a practitioner may be suspended for a maximum period of three years; see s 101(b).

Result

[132] The appeal is dismissed.

Costs

[133] If counsel cannot agree on costs, which would ordinarily be payable by Dr Emmerson to the PCC on a 2B basis, I shall receive memoranda of not more than five pages:

(a) From Mr Muston by 5 pm Friday, 1 December 2017. (b) From Mr La Hood by 5 pm Friday 7 December 2017.

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

Downs J