Ipsofactoj.com: International Cases [2003] Part 2 Case 10 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Dr Wislang

- vs -

Medical Council of New Zealand

RICHARDSON P

BLANCHARD J

TIPPING J

4 MARCH 2002


Judgment

Blanchard J

  1. Dr Wislang appeals against the dismissal by the High Court of his application for judicial review of decisions:

    1. On 7 October 1999 by the Medical Practitioners Disciplinary Tribunal (the Tribunal) acting under s104(1)(a) of the Medical Practitioners Act 1995 (the Act) to suspend his registration as a medical practitioner pending determination of certain disciplinary proceedings against him (the interim suspension order);

    2. On 11 November 1999 by the Tribunal acting under s110(1) of the Act to suspend his registration for two months from that date and to impose a fine and costs (the substantive decision); and

    3. On 20 September 2000 by the Medical Council of New Zealand (the Council) acting under s54 of the Act to issue him a practising certificate which was made subject to a condition that he must nominate a general overseer who would also agree to be his mentor (the condition decision).

  2. Section 9 of the Act provides:

    9.

    Practice of medicine

    No person shall practice medicine under the title of a medical practitioner (as defined in section 2 of this Act) unless he or she holds—

    (a)

    Both—

    (i)

    Probationary registration, general registration, or vocational registration; and

    (ii)

    A current practising certificate; or

    (b)

    Temporary registration or interim registration.

  3. The charge which Dr Wislang faced was originally framed in the notice given under s103 of the Act as follows:

    The Complaints Assessment Committee, pursuant to s93(1)(b) Medical Practitioners’ Act 1955, charges that Dr Miles Wislang, Medical Practitioner of Auckland:

    (a)

    In the course of performing hair transplantations upon [A] during 1996 and 1997 practiced medicine without holding a current practising certificate.

    (b)

    And/or he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate.

    Being professional misconduct.

    In a letter to the Tribunal Dr Wislang formally admitted this charge. It is common ground that his practising certificate lapsed at the end of March 1994 and that without a certificate he practiced hair transplant surgery in New Zealand from August 1994 until April 1998. Dr Wislang sought the opportunity of making submissions to the Tribunal as to penalty.

  4. The Tribunal then notified Dr Wislang as follows:

    AMENDED CHARGE

    PLEASE TAKE NOTICE THAT:

    (a)

    A Complaints Assessment Committee duly appointed by the President of the Medical Council of New Zealand under s99 of the Medical Practitioners Act 1955("the Act") has reason to believe that a ground exists entitling the Tribunal to exercise its powers under Section 109 of the Act;

    (b)

    The substance of the ground believed to exist, and the particulars of the charge are:

    The Complaints Assessment Committee, pursuant to Section 93(1)(b) Medical Practitioners Act 1955, charges that Dr Miles Wislang, Medical Practitioner of Auckland:

    (a)

    In the course of performing hair transplantations upon [A] during 1996 and 1997 practised medicine without holding a current practising certificate.

    (b)

    And/or he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate.

    These particulars amount to either professional misconduct and/or that Dr Wislang practised medicine outside the extent permitted by, or not in accordance with the conditions of his registrar or any practising certificate held by him.

  5. The significance of this alteration to the form of the charge was that s110(2) precludes the Tribunal from ordering removal of the name of a medical practitioner from the medical register unless it has found the practitioner guilty of certain conduct or offences including practising medicine "outside the extent permitted by, or not in accordance with the conditions of, his or her registration or any practising certificate held by him or her" (s109(1)(f)). The original charge had not exposed Dr Wislang to the peril of removal of his name from the register. In a letter accompanying the notification of the amended charge, the Tribunal’s secretary drew attention to the incorporation of s109(1)(f), saying that Dr Wislang would need to take this into account when preparing his submissions on penalty and might also wish to seek legal advice to assist him in the matter.

  6. Dr Wislang elected, however, not to obtain legal advice and represented himself at the hearings which followed. It became apparent to the Tribunal at the first of the hearings, on 7 October 1999, after Dr Wislang had confirmed that he had entered a plea of guilty, that he had not appreciated that he was now facing a more serious charge. The Tribunal heard some evidence from Dr Wislang but expressed its concern that he was disadvantaged and adjourned the hearing so that the situation could be considered. At the same time it made an order suspending his registration pending the determination of the disciplinary proceedings. He was advised that, pursuant to s105 of the Act, he could apply to the Tribunal for a revocation of this order at any time.

  7. Following the adjournment, Dr Wislang raised objection to the amended charge. The Tribunal took advice from leading counsel and by Minute issued on 4 November 1999 advised that it would, at the resumed hearing, be re-amending the charge to delete the allegation of breach of s109(1)(f), i.e that it was reverting to the original form of charge.

  8. At the resumed hearing on 11 November Dr Wislang stated that he pleaded guilty to practising without a certificate but not guilty to professional misconduct. After hearing evidence and submissions the Tribunal found him guilty of the re-amended charge. It made orders:

    • Censuring Dr Wislang;

    • Suspending his registration for two months (from 11 November);

    • Fining him $8,500; and

    • Requiring him to pay costs of $18,301 (fixed as 35% of the total costs of the Complaints Assessment Committee’s inquiry and prosecution and of the Tribunal’s hearings).

  9. Section 116 of the Act gave Dr Wislang a right of appeal to a District Court against these orders. He exercised that right in relation to the costs award only, but expressly did not dispute the assessment of the percentage. Representing himself again, he submitted only that the Tribunal had not made sufficient allowance or discount for costs arising from the changes made to the charge. In a reserved decision on 27 April 2000 in the District Court at Auckland, Cadenhead DCJ determined that the award of costs and the quantum of costs was appropriate and dismissed the appeal. That decision has not been formally challenged.

  10. Dr Wislang applied to the Council for an annual practising certificate. There followed a lengthy correspondence with the Council over its proposal that the certificate should be subject to conditions (s54(2)(b)). Eventually on 20 September 2000 and after receiving written and oral submissions from Mr Taylor, counsel for Dr Wislang, the Council notified Dr Wislang that it had resolved that an annual practising certificate be issued subject to the following conditions:

    • That you restrict your independent practice to hair transplants and the teaching of anatomy and bio-surgical research; and

    • That you nominate a general overseer who will also agree to be your mentor.

  11. Dr Wislang had no objection to the first condition but, rather than accept the second condition, he has elected not to uplift any certificate. As it happens, by not obtaining a certificate by 1 July 2001 he ceased, as from that date, to have the benefit of the transitional provision in s145(2) for the those who had held an annual practising certificate under the Medical Practitioners Act 1968 for at least five consecutive years since gaining registration, and he is now subject to the mandatory requirement of general oversight specified in s20(1) of the 1995 Act.

    INTERIM SUSPENSION ORDER

  12. Dr Wislang challenged the interim suspension order on two grounds. First he said that the Tribunal had no jurisdiction to make any such order because at the time it was made there was no valid charge against him. Section 104 empowers the Tribunal to order interim suspension only after a notice has been given under s103(1). The argument put forward was that the original charge had been withdrawn and the amended charge was invalid, as the Tribunal was said to have accepted when, on advice, it made the further amendment back to the original (valid) form of charge.

  13. Secondly, the reasons given for the making of the order relied in important part, it was said, upon Dr Wislang’s unawareness when he pleaded guilty that the amended charge incorporated s109(1)(f). Thus, it was said, even if the amended charge was not invalid in its entirety, the Tribunal was relying upon the invalid portion as a basis for suspending Dr Wislang.

  14. In the High Court in his decision delivered on 21 June 2001, Wild J referred several times to the invalidity of the amended charge and appeared to accept that was the position, but without directly ruling on the point and without giving any reasons for that view. In this Court Mr Taylor objected to the respondents’ argument that the amended charge was a valid charge so as to provide a basis for the Tribunal’s exercise of power under s104. There had been no cross-appeal against a finding of invalidity. For the respondents, Mr McClelland explained that the view had been taken that Wild J had not actually made such a finding. Lest that view be wrong, he sought special leave to cross-appeal, which we granted.

  15. We have no doubt that the Tribunal could invoke s104. A notice had been earlier given under s103 containing particulars of a charge to which no objection could be taken. The amending of the charge, it is accepted, merely added a new element, either cumulatively or in the alternative. The original charge in substance remained. That constituted a valid charge. It was not invalidated by the addition. Although the addition itself had been of concern to the Tribunal’s adviser and was withdrawn, it has not been suggested that the amended charge was duplicitous.

  16. So far as the second point is concerned, we consider, like Wild J, that it has no merit. In its reasons for making the interim suspension order, the Tribunal referred to Dr Wislang’s admission at the hearing that he had not held a practising certificate since 1994 and that during the period April 1994 to April 1998, notwithstanding that he was aware that he had not obtained a practising certificate, he had carried on his medical practice. This included carrying out hair transplant operations, advertising his medical services in the Yellow Pages and elsewhere, treating patients, including prescribing and administering drugs, and charging fees for medical services. He had also admitted obtaining prescription medicines, drugs used in local anaesthetics and such other drugs as he had considered necessary for his practice from pharmacists and drug suppliers "in the knowledge that such pharmacists and drug suppliers thought that he had a practising certificate and otherwise were acting in the belief that he was legally entitled to obtain said drugs and medications". (Mr Taylor conceded in argument that it was unlawful for Dr Wislang to have written subscriptions or obtained drugs while he was not the holder of an annual practising certificate.) The Tribunal then mentioned Dr Wislang’s statement that when he had pleaded guilty to the charge he was unaware that the amendment incorporated s109(1)(f).

  17. The Tribunal also referred to Dr Wislang’s advice to it that he was a bankrupt, that he had been ordered by the Official Assignee to cease trading as a sole practitioner in April 1998, as well as to his statement that he had not sought employment as a medical practitioner because he preferred to work alone and was not willing to work as an employee medical practitioner. The Tribunal noted that Dr Wislang had advised that he had applied to the Medical Council for a practising certificate to enable him to recommence medical practice on his own account.

  18. The Tribunal recorded its determination as follows:

    As a result of the evidence given by Dr Wislang the Tribunal has determined that Dr Wislang has demonstrated a lack of insight, judgment and ability to organise his affairs such that it is necessary and/or desirable having regard to the health or safety of members of the public that Dr Wislang’s registration be suspended pending the determination of the disciplinary proceedings against him.

  19. The determination was made on the whole of the material to which the Tribunal had referred. There was thus a much more than ample basis for it to form the view that there must, for the health or safety of members of the public, be an interim suspension order. We regard as completely artificial the argument that the Tribunal was relying on Dr Wislang’s misunderstanding of the amended charge as a reason for making its decision and thus was influenced by the alleged invalidity. It is evident from reading the decision as a whole that it was really the other factors which gave rise for concern. It appears to us highly unlikely that Dr Wislang’s confusion over the nature of the charge made any difference to the position adopted by the Tribunal. The interim order was fully justified and, even if we had been persuaded that the technical argument made on behalf of Dr Wislang had merit, we would not in the exercise of our discretion have disturbed the Tribunal’s decision. Any such error could not have affected the result of the Tribunal’s deliberations.

    THE SUBSTANTIVE DECISION

  20. Dr Wislang accepts that he was properly found guilty and censured. At the hearing he had accepted that a fine would be appropriate and was concerned only with its amount, mentioning in particular his status as a bankrupt. Similarly, he accepts that an order for payment of some costs could properly have been made, disputing quantum only. In addition to the quantum of the fine and the costs, his judicial review proceeding challenges the two month suspension order, which of course replaced the interim order.

  21. Mr Taylor confirmed to us that there was no allegation that any of the sanctions was imposed for an improper purpose. The Tribunal stated its understanding that the purposes of imposing a sanction for disciplinary offences were at least three-fold:

    • To punish the practitioner;

    • As a deterrent to other practitioners; and

    • To reflect the public’s and the profession’s condemnation or opprobrium of the practitioner’s conduct.

    Mr Taylor said that this statement was not challenged.

  22. We deal first with the suspension order. We record at the outset Mr Taylor’s concession during argument that even if, contrary to the view we have just expressed, the interim order had been made on an improper basis, it could not be said that any impropriety carried through into and infected the final order. The Tribunal gave separate reasons for ordering suspension:

    In terms of a finding of professional misconduct, Dr Wislang’s conduct, again in the absence of any substantive complaint against him, at first glance appears open to an argument that it is offending at the lower end of the scale.

    However it must be borne in mind that Dr Wislang practised without a practising certificate for more than four years. He was aware that he did not have a practising certificate but for a variety of reasons simply failed to obtain one. Notwithstanding, throughout that period he held himself out as a medical practitioner properly qualified and entitled to claim that status. He continued to treat patients and, most worryingly, to obtain, prescribe and administer drugs. He admitted that he was aware that all persons, including patients, pharmacists and drug companies, entered into their dealings with him on the basis that he was entitled in all respects to carry on his practice as a hair transplant surgeon and that aspect of his offending and the potential consequences for innocent third parties has already been referred to in this Decision.

    The legislation clearly intended that practising without a practising certificate constitutes a serious offence both by making it an offence of strict liability and deeming it to be an offence at the level of professional misconduct. This is not a case where Dr Wislang’s failure to obtain a practising certificate was a mere oversight on his part and, whilst the Tribunal accepts his submission that he was not "intentionally anarchistic", nevertheless it cannot disregard the fact that the period of the offending and the potential consequences for others, and for the public generally, are not insignificant.

    Accordingly, the Tribunal determined that a period of suspension was unavoidable.

  23. In the end, what the appellant’s objection to the suspension order came down to was that the Tribunal had taken into account an allegedly irrelevant consideration in referring to the "potential consequences for innocent third parties". This related to an earlier passage in the Tribunal’s reasons in which the Tribunal had expressed the view that Dr Wislang lacked insight into the seriousness of his failure to obtain a practising certificate for over four years. It said that the lack of judgment displayed itself in other ways:

    For example, Dr Wislang also appears not to have given any thought to the jeopardy in which he placed other persons with whom he had dealings during the period he was carrying on his medical practice without holding a practising certificate. For example, the pharmacists and drug companies who filled prescriptions and/or supplied him with the medicines he required to carry on his practice, all in the belief that he was a "practitioner" within the terms of the relevant legislation, i.e. the Medicines Act, the Misuse of Drugs Act and the Medical Practitioners Act and therefore legally entitled to obtain the medicines he required to carry on his medical practice.

  24. Mr Taylor submitted, as he had done to Wild J, that the Tribunal had erred in law in not recognising that Dr Wislang was a medical practitioner within the meaning of that term as defined in the relevant legislation notwithstanding his lack of a practising certificate. As he was a registered medical practitioner, his actions had not placed pharmacists and drug companies in jeopardy. The legal point being taken was that s2 of the Act defines a "medical practitioner" or "practitioner" as a person registered under the Act, which Dr Wislang was throughout. The Medicines Act 1981 defines "medical practitioner" as a person registered as a medical practitioner under the Medical Practitioners Act. So does the Misuse of Drugs Act 1975. Mr Taylor submitted that a person so registered is a medical practitioner for the purposes of the three Acts regardless of not holding a practising certificate. If it had been intended otherwise, counsel said, the definition in s2 of the Act would have included the requirement for the holding of the certificate.

  25. In rejecting this argument Wild J said that the emphasis in the legislation is on persons entitled to practice medicine, which is determined by registration and the holding of a current practising certificate: see s9 of the Act (para [2] above). Unarguably, Wild J said, the pharmacists and drug companies who filled Dr Wislang’s prescriptions or supplied him with medicines believed he was entitled to practice medicine and unarguably he held himself out as such.

  26. We agree. And the matter is put beyond all doubt by s139 of the Act which provides:

    139.

    Reference to medical practitioners in other Acts

    Every reference in any enactment to a medical practitioner or registered medical practitioner or duly qualified medical practitioner shall, unless a different intention appears, be deemed to be a reference to a person registered under this Act who is practising in accordance with any conditions of his or her registration or practising certificate.

    So when the Medicines Act prohibits sale by retail of any prescription medicine otherwise than under a prescription given by a "practitioner" (s18)(2)), that is a reference to a medical practitioner registered under the 1995 Act who is practising in accordance with any conditions of his or her registration or practising certificate. That must mean that the person has to have a practising certificate. It could not sensibly have been intended to cover only those registered medical practitioners who happened to hold a certificate.

  27. Mr Taylor conceded in the course of argument that if, as we do, we were to confirm Wild J’s interpretation, there would be some jeopardy for pharmacists and drug companies who supplied a prescription drug to a practitioner who did not hold a practising certificate, since they would have to prove that they did not intend to commit an offence and had taken all reasonable steps to ensure that the sale did not constitute an offence (s80(2) of the Medicines Act).

  28. Furthermore, even if the example of a pharmacist or drug company given by the Tribunal had not been correct, it was simply an example of a potential jeopardy caused by Dr Wislang’s conduct. The Tribunal also referred to Dr Wislang’s patients. Mr Taylor conceded that they might well be in some jeopardy in relation to the accident compensation legislation pertaining to medical misadventure since "registered health professional" as defined in s3 of the Accident Rehabilitation and Compensation Insurance Act 1992 (in force at the relevant times) is a person entitled to practice medicine under the title of medical practitioner pursuant to s9 of the 1995 Act and holding a current certificate evidencing that entitlement to practice. (This of course reinforces the view we have taken concerning the requirements of the Act itself.)

  29. The appeal against the challenge to the validity of the suspension order penalty thus fails.

  30. As we have said, the review sought in respect of the fine and the costs is in reality related to their quantum only. The appellant seeks to have the Tribunal’s decisions in relation to those matters set aside, but accepts that the quantum would then have to be re-fixed. It is said that the Tribunal took into account irrelevant considerations in deciding how much to fine Dr Wislang and how much to require him to pay in costs.

  31. Judicial review is discretionary and will be refused when the remedy of appeal is more appropriate (Fraser v Robertson [1991] 3 NZLR 257, 260), as it will be when there has been "an opportunity to re-ventilate the whole matter with all one’s original rights preserved", as Speight J put it in an authority with which the present appellant must be familiar, Wislang v Medical Practitioners Disciplinary Committee [1973] 1 NZLR 29, 44. In the case of the Medical Practitioners Act, all penalties able to be imposed by the Tribunal under s109 are susceptible to appeal to a District Court by virtue of s116(1)(a). The legislature evidently saw the need for speedy disposition of any challenge to the Tribunal’s exercise of its penalty powers, for it required any appeal to be lodged within 20 days or such further time as allowed by a District Court Judge (s116(4)(b)) and provided, in s118(1), that every appeal under s116 must be heard "as soon as reasonably practicable after the appeal is lodged". Subject to a right of appeal to the High Court by way of case stated on a question of law only, the decision of the District Court is final (s118(4)). The more leisurely process of judicial review is scarcely consistent with this direction in the general run of cases, and certainly not where the dissatisfaction is with a penalty, particularly when it is only the quantum which is in contest.

  32. In the present case the appellant exercised his right of appeal and, being unsuccessful, has only subsequently sought judicial review. The District Court confirmed the costs award. Dr Wislang now collaterally attacks that decision and raises a further argument relating to quantum. We were left entirely unpersuaded by Mr Taylor’s submission directed to showing that because the Tribunal may have taken into account in fixing the monetary penalties some arguably irrelevant factors or may have been mistaken in its view concerning some factual elements, judicial review would originally have been an appropriate course. On the contrary, the aspects complained of are obviously factual matters to which the Tribunal adverted in coming to its assessment of quantum. This is par excellence the stuff of general appeals, not judicial review. Still less is it arguable that having had and taken his opportunity of appealing, Dr Wislang should now be permitted to contest such matters by an alternative legal process.

  33. Mr Taylor placed at the forefront of his argument a criticism of a sentence in Wild J’s judgment which followed the Judge’s acceptance of an argument of counsel for the Medical Council that, if the costs decision was wrong in point of law, then the remedy was appeal, not judicial review. Wild J commented that judicial review "is concerned not with the merits or correctness (whether in fact or in law) of a decision, but with the manner in which that decision was made". We agree that this was too restrictively stated. It is not supported by the authority cited by the Judge, namely the judgment of Richardson J in Fraser v State Services Commission [1984] 1 NZLR 116, 127, which merely confirmed that judicial review is concerned not with the decision but with the decision-making process. But this misstatement by Wild J, seemingly influenced by the same concern which we have expressed about the misuse of the judicial review procedure by the appellant, did not lead him to an erroneous conclusion concerning the costs award.

  34. The appeal therefore fails also in relation to the substantive decision.

    THE CONDITION DECISION

  35. Section 54(1) of the Act provides:

    54.

    Decisions of Council as to practising certificates

    (1)

    When an application for an annual practising certificate has been referred to the Council by the Registrar, the Council shall not decide that the certificate should be issued unless it is satisfied that the applicant is competent to practise medicine in accordance with his or her registration (or, if the Council imposes conditions on the annual practising certificate, that the applicant is competent to do so if he or she complies with those conditions).

  36. The Council gave Dr Wislang by letter of 20 September 2000 detailed reasons for its decision to impose conditions. It said that a medical practitioner’s competence included not only whether a doctor was practising safely and had an acceptable level of knowledge and skills (including procedures and communication) but also the doctor’s attitudes and judgment:

    During the period April 1994 to April 1998, notwithstanding that you were aware that you had not obtained a practising certificate you carried on your medical practice.

    Since the MPA came into force in 1996 the APC is seen as an important tool for monitoring a doctor’s competence. The Registrar has powers to decline to issue a doctor with an APC if she has reasonable grounds to believe that there are concerns about that doctor’s professional competence. Your lack of insight and lack of awareness of the potential harm to the public (in the terms expressed by the MPDT in paragraph 6.3 of its decision and the admissions set out in paragraphs 7 and 8 of the submissions prepared by your counsel) by practising outside the formal statutory structure of the medical profession is a serious concern to the Council.

    Council considers that your attitude and lack of judgment and, in particular, not giving any thought to the jeopardy in which you placed persons with whom you had dealings during the period that you were practising without an APC (again as discussed by the MPDT in its decision) evidences a deficiency in your competence as a medical practitioner as described in paragraph 4.3.

    You have demonstrated to the Council a lack of overall ability to organise your affairs. You have failed on a number of occasions to notify Council of your change of address, you have failed to make arrangements with the MPDT to pay the costs awarded against you in December last year and when asked by the President where you intended to work from with your APC you advised that that was yet to be determined.

    The Council decided that your knowledge and skills of procedures and communication and your attitudes and judgement is not of an acceptable level and it felt that it could only be satisfied that you were competent to practise if the Council imposed conditions on your APC and that you complied with those conditions.

  37. In paragraph 7 and 8 of the submissions of counsel referred to by the Council there had been reference to Dr Wislang’s:

    1. Administrative organisational failure in not obtaining annual practising certificates from 1994 to 1998;

    2. Unawareness of the implications for patients in regard to the Accident Rehabilitation and Compensation Insurance Act 1992 of his failure to maintain current practising certificate; and

    3. Unawareness of the representation in law that he held a current practising certificate when he treated patients and dealt with wholesale and retail pharmacists.

    Dr Wislang had accepted the correctness of these matters and their relevance to his application for a practising certificate.

  38. The argument for Dr Wislang was that, in determining to impose the condition on his annual practising certificate relating to nomination of a general overseer as a mentor, the Medical Council exceeded its powers. In particular, it was submitted that the Council had misconceived what might come within being "competent" to practice medicine. It was argued that competency is related only to clinical actions which, it was submitted, meant the ability to diagnose adequately, to identify appropriate treatment or procedure and to undertake the procedure adequately, and went beyond that to personal attributes, such as communication and attitude, only to the extent that they could be shown to bear on diagnosis, identification of treatment and the undertaking of procedures. Counsel for the appellant said that the administrative organisational ability of a doctor does not, as a matter of law, come within the concept of "competence" unless it impinges on those matters, as it would do if the practitioner did not have an adequate system for retaining patients’ notes and so would be deprived of a reliable perspective of a patient’s medical history, which might adversely affect diagnosis, identification of appropriate treatment or procedure and/or the undertaking of a procedure safely and adequately. It had not been suggested that Dr Wislang had administrative inadequacies of that kind.

  39. In the High Court Wild J considered that the definition and bounds of competence were left by the statute very much to the Council, noting particularly that s63 empowers it to set or recognise competence programmes in respect of medical practitioners who hold or apply for practising certificates and that such a programme may involve passing an examination, completing a period of practical training or of practical experience, undertaking a course of instruction, permitting inspection of clinical records by a registered health professional and "(f) Anything else that the Council considers appropriate".

  40. In Ghosh v General Medical Council [2001] 1 WLR 1915, 1923 the Privy Council said that it would accord appropriate respect for the professional body’s judgment on the measures necessary to maintain professional standards and provide adequate protection for the public. The same approach is appropriate under the New Zealand legislation. In our view, the concept of competency in the 1995 Act is related to the principal purpose of protecting the health and safety of members of the public and encompasses any conduct of a practitioner which the Council reasonably considers may directly or indirectly affect their health and safety. The matter must be viewed broadly because it is difficult to determine in advance (when erecting the "fence at the top of the cliff") how particular conduct may have such an adverse effect. For instance, the administrative mismanagement of a practice which leads to financial problems for the practitioner, perhaps pushing him towards bankruptcy, may so distract him that it results in a deterioration in his health and, as a consequence, his clinical abilities may be affected. It must therefore surely be permissible for the Council when considering the issuance of a certificate to interest itself in the applicant’s ability to administer his or her practice. This view is supported by the provisions of s60(2) which deals with the conducting of a review of a practitioner’s competency and directs the Council in that connection to consider:

    1. Whether, in the Council's opinion, the practitioner has the skill and knowledge required to practise medicine in accordance with his or her registration; and

    2. Whether, in the Council's opinion, the practitioner's practice of medicine meets the standard reasonably to be expected of a medical practitioner who holds registration of the type held by the practitioner.

  41. Clearly the drafter of the statute saw the practice of medicine to the reasonably expected standard as encompassing more than possession of the skill and knowledge required to practice medicine. If not, para (b) would be surplusage. The practice of medicine must involve all aspects of the conduct of the practice, not simply those which directly require clinical skill and knowledge or are directly related to clinical matters, such as patient record keeping.

  42. The Council is therefore given a broad power to determine competency but there are two potentially overlapping controls on its exercise of its power to determine competence, namely

    1. the matter of concern must relate to public health and safety and

    2. that the Council’s determination and the action taken in consequence must not be unreasonable in the circumstances.

  43. It cannot in our view be fairly said that the Council’s reasons for imposing conditions on Dr Wislang’s certificate were unrelated to such health and safety concerns, and it is not suggested that the second condition was unreasonable in an administrative law sense. Mr Taylor pursued again in this connection the objection to the reference to the "jeopardy" of persons with whom Dr Wislang had dealings whilst he was practising without an annual practising certificate, but we have already shown that objection to be unsound. Counsel’s main argument was directed to the fourth reason – that Dr Wislang had demonstrated a lack of overall ability to organise his affairs. In context this remark was clearly related to his professional affairs. We accept that the three specific criticisms which followed – change of address, payment of costs and indecision about a place from which to work – may not have been soundly based. Dr Wislang was able to give explanations. But these were merely examples of the Council’s more general concern about the way in which Dr Wislang approached the conduct of his practice and there was abundant evidence, including Dr Wislang’s own admissions, to sustain the conclusion of a lack of overall ability to organise a medical practice. Disorganisation in this respect could clearly impact upon the health and safety of his patients. The Council was entitled to consider that Dr Wislang’s inadequacies might well indirectly affect his clinical performance. The imposition of the conditions was a valid exercise of the Council’s power under s54.

    RESULT

  44. The appeal is dismissed. The appellant must pay the costs of the first and third respondents in the sum of $10,000 together with any reasonable disbursements, which are to be fixed if necessary by the Registrar.


Cases

Fraser v Robertson [1991] 3 NZLR 257; Wislang v Medical Practitioners Disciplinary Committee [1973] 1 NZLR 29; Fraser v State Services Commission [1984] 1 NZLR 116; Ghosh v General Medical Council [2001] 1 WLR 1915

Legislations

Medical Practitioners Act 1995: s.9, s.54, s.60, s.103, s.104(1)(a), s.109(1)(f), s.110(1), (2)

Representations

G D S Taylor for Appellant (instructed by Hanning Connor, Wellington)

M F McClelland and N J Russell for First and Third Respondents (instructed by KPMG, Wellington)

B A Corkill for Second Respondent (leave to withdraw)


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