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Disciplinary Process

Practice Notes



The Act

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Disciplinary Process


Pre-hearing requirements

Once the Notice of Disciplinary Proceedings has been given to the medical practitioner and he/she (or counsel) has returned the completed Reply Checklist to the Tribunal (or after 21 days has elapsed without filing of the Reply Checklist), the Secretary will consult with the parties to confirm the date and time of the Directions Conference. This conference is one of the procedures established by the Tribunal to ensure that proceedings are conducted fairly and expeditiously, that the expense of hearings is minimised and that the objects of the Tribunal’s procedures are met. The primary object of the Tribunal’s procedures is to ensure in a manner consistent with the circumstances of each case:

  1. The just treatment of all interested parties.
  2. That adequate hearing time is provided for so that both the prosecution and respondent medical practitioner are given fair and sufficient opportunity to present their respective cases to the Tribunal at the hearing.
  3. That all of the Tribunal’s resources are used efficiently.

There are particular procedures available under the Act with which the parties should be familiar. For example, the medical practitioner is reminded of the obligation under s 103(3) of the Act to notify the Tribunal in writing whether or not he or she wishes to be heard by the Tribunal, either personally or by representative. This is the first question to be answered in the Reply Checklist.

Pursuant to Section 106 of the Act hearings of the Tribunal are held in public unless there exist grounds for the Tribunal to order otherwise. Where one party or the other, or the complainant, requests an order that the whole or any part of the hearing shall be held in private, or where the Tribunal itself wishes to consider that possibility, the Tribunal will invite all parties affected to submit their views. Where the Tribunal is satisfied that it is desirable to do so, it may order that the whole or any part of the hearing shall be held in private. Similar orders may be made prohibiting publication of written materials or the name, or any particulars of the affairs of any person. Because s116 of the Act provides a right of appeal against the whole or any part of any order made under s106, the Tribunal will need to deal with applications under s106 in advance of the hearing.

Accordingly, it is essential that any such applications are identified promptly in the Reply Checklist and made formally to the Tribunal so that they can be dealt with well in advance of the hearing. Also to be noted are the special protections for complainants contained in Section 107 of the Act. Where the charge relates to or involves any matter of a sexual nature or any matter that may result in the complainant giving evidence on matters of an intimate or distressing nature, special safeguards to protect privacy can be implemented.

After the Directions Conference the Tribunal will forward a note to the parties setting out a timetable, any directions or orders made and such other matters as are appropriate.

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What happens at the hearing:

The hearing is in public unless otherwise ordered. The hearing remains always under the control of the Chair. The Tribunal must comply with the rules of natural justice which, amongst other things, require that each party is entitled to a fair and impartial hearing, to have the opportunity to put its case and to be present when the other party is stating its case. Subject to this, the Tribunal may receive as evidence any statement, document, information or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not it would be admissible in a Court of law.

Where the charge relates to or involves any matter of a sexual nature, or where any matter that may require or result in the complainant giving evidence on matters of an intimate or distressing nature, the Tribunal will offer the complainant the right to give his or her oral evidence in private. The Tribunal also has a discretion to order that evidence of acts performed on a complainant, or which the complainant is alleged to have been compelled or induced to perform or to consent to, may not be the subject of publication in any report or account. (Section 107)

The Tribunal may, at any time during the hearing of any charge, amend the charge in any way.

As earlier indicated the Tribunal may from time to time appoint a legal assessor and/or a medical assessor, each of whom may be present at any hearing of the Tribunal and at any time may respectively advise the Tribunal on matters of law, procedure, evidence, or on medical matters. However, neither a legal assessor nor a medical assessor shall be entitled to be present during any deliberations of the Tribunal.

The Tribunal may adopt whatever procedures appropriate to the circumstances, however, the usual procedure at the hearing is as follows:

  1. The Tribunal requires the parties to adduce evidence by way of written statements unless applications to the contrary are made and granted prior to the hearing of the charge(s). e.g. where appropriate, evidence may be given by affidavit or video-link by witnesses who cannot attend.

  2. The party upon whom the burden of proof lies, either a Complaints Assessment Committee or the Director of Proceedings, will present its case first. The burden of proof is the burden of establishing the facts that give rise to the charge. The party with the burden of proof will be referred to as the prosecution. Prosecution counsel will make opening submissions and will call each of the prosecution witnesses in turn. Each party attempts to establish its case by providing evidence sufficient to satisfy the Tribunal.

  3. Evidence may be given either on oath or affirmation. If so, each witness must be sworn or affirmed. The procedure for taking the oath is as follows:

    The Witness holds a Bible in his or her right hand and the Secretary says to the witness:
    “Do you swear that the evidence you are about to give in these proceedings will be the truth, the whole truth and nothing but the truth?”
    The witness replies:
    “I do.”

    Alternatively the witness may make an affirmation, a non-religious, binding obligation. The procedure for affirmation is similar. The Secretary asks the witness:

    “Do you solemnly, sincerely and truly declare and affirm that the evidence you are about to give in these proceedings will be the truth, the whole truth and nothing but the truth?”

    The witness replies:

    “I do.”
  4. The witness then gives evidence of the facts that are within his or her knowledge. If an expert is called, that person may give an opinion on the relevant issues. This part of the evidence is called evidence-in-chief. The evidence-in-chief will normally be presented in the form of a written statement which is read to the Tribunal. Alternatively, the evidence may be led, that is, given in response to questions from prosecution counsel. During this examination the usual rules of evidence apply. For example, leading questions may not be asked on matters which are in dispute between the parties. A leading question is one so worded that it suggests the desired answer to the witness. Leading questions may however be put in preliminary matters, matters that are not in dispute, or during cross-examination. 

  5. Counsel for the respondent medical practitioner may then cross-examine the witness on any matter relevant to the case. 

  6. If a witness has been cross-examined, prosecution counsel may re-examine the witness but only on matters which have been raised in cross-examination. 

  7. The same procedure is followed for all other witnesses called by the prosecution.

  8. Counsel for the respondent medical practitioner then makes opening submissions and calls witnesses in the same way.

  9. Counsel for the prosecution then has a right to make final submissions, as does respondent counsel in turn.

  10. The Tribunal Chair and members may ask questions of a witness. Isolated questions may be asked during examination-in-chief and cross-examination but members of the Tribunal will usually reserve questions until conclusion of the re-examination of the witness. The parties (or their counsel) will be given an opportunity to question the witness on any issues which arise from the Tribunal’s examination.

  11. The Secretary will will keep a formal record of the hearing. The evidence will be recorded, usually by way of a verbatim transcript which wil then be available during the course of the hearing.

  12. The Tribunal will retire to consider the case and reach a decision. A written decision will be circulated to the parties some time after the hearing. The requirements of s138 of the Act should be noted. Where the Tribunal makes an order under the Act in respect of any medical practitioner the Secretary must arrange publication of a notice in such publications as the Tribunal may order, stating:

    (a) The effect of the Order;

    (b) The name of the medical practitioner in respect of whom the order is made; and

    (c) A summary of the proceedings in which the order is made.

    Customarily publication under s138 of the Act has been made in the New Zealand Medical Journal. Additionally, but respecting any suppression orders subsisting under s106 of the Act, it is the practice of the Tribunal to send copies of all Decisions to the newspaper circulating in the area in which the medical practitioner practises and lives.

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What happens after the hearing?

If circumstances permit the Tribunal will meet in private to consider the evidence which has been placed before it and reach a decision immediately after the conclusion of the hearing. If possible the Tribunal will reconvene and announce its decision orally. If the charge has been upheld the Chair will invite counsel to make submissions as to penalty. Appendix A to this leaflet describes the orders which the Tribunal may make under the Medical Practitioners Act 1995.

If the Tribunal does not communicate its decision to the parties on the day of the hearing, the decision will be sent direct to the medical practitioner and counsel for both prosecution and respondent medical practitioner with a copy to the complainant. If the charge has been upheld, written submissions on penalty will be sought.

The submission from the solicitors on penalty will be considered by the Tribunal before it issues a final decision or finding. This decision will be sent to the respondent medical practitioner, the complainant and to counsel for the prosecution and respondent.

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Grounds on which a medical practitioner may be disciplined:

Section 109(1) of the Act provides if the Medical Practitioners Disciplinary Tribunal is satisfied that the practitioner:

  1. Has been guilty of disgraceful conduct in a professional respect; or
  2. Has been guilty of professional misconduct; or
  3. Has been guilty of conduct unbecoming a medical practitioner, and that conduct reflects adversely on that practitioner’s fitness to practise medicine; or
  4. Has been convicted of any offence against the Health Act 1956, the Medicines Act 1981, the Misuse of Drugs Act 1975, the Accident Rehabilitation and Compensation Insurance Corporation Act 1992, the Contraception, Sterilisation and Abortion Act 1977, the Births, Deaths, and Marriages Registration Act 1995 or the Coroner’s Act 1989; or
  5. Has been convicted by any Court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of three months or longer, and the circumstances of that offence reflect adversely on the practitioner’s fitness to practise medicine; or
  6. Has practised 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; or
  7. Has breached any order of the Tribunal made under section 110 of the Act –

the Tribunal may impose any one or more of the penalties specified in section 110 of the Act.

Section 109(2) of the Act requires that the following two types of misconduct are to be charged as professional misconduct:

  1. An alleged breach of section 11 of the Act (which requires a medical practitioner who objects on the grounds of conscience to providing advice or service with respect to contraception, sterilisation or other family planning matters to inform the person that he or she may obtain that service from another medical practitioner or a family planning clinic); or
  2. The case of a medical practitioner who, being the holder of probationary registration, general registration or vocational registration, practises medicine while not holding a current practising certificate,

In all other cases a charge should be framed for one offence only. Every charge should contain sufficient particulars to fairly inform the medical practitioner of the substance of the offence with which he or she is charged.

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(Section 110 of the Medical Practitioners Act 1995)

The Tribunal in making orders may:

  • Remove the doctor’s name from the register or any part of the register
  • Suspend the doctor’s name from the register for a period not exceeding 12 months
  • Impose conditions (employment, supervision or otherwise) on the doctor’s practice for a period not exceeding three years
  • Censure the doctor
  • Fine the doctor up to $20,000
  • Require the doctor to pay part or all of the costs and expenses incidental to any or all of the following:
  • Investigation by the Health and Disability Commissioner
  • Inquiry by the Complaints Assessment Committee
  • Prosecution of the charge by the Director of Proceedings or the Complaints Assessment Committee
  • Hearing by the Tribunal.

The Tribunal can only make an order to remove the doctor’s name from the register (or any part of the register) if the doctor has been found as follows:

  • Guilty of disgraceful conduct in a professional respect; or
  • Convicted by a Court in New Zealand or elsewhere of an offence punishable by imprisonment of a term of three months or longer; or
  • Practising medicine outside the extent permitted by or not in accordance with the conditions on his or her practising certificate.

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Any questions?

If you have any questions, please do not hesitate to ask either your solicitor or the Tribunal Secretariat:

Medical Practitioners Disciplinary Tribunal
PO Box 11649, Wellington
Telephone (04) 381-6816, Facsimile (04) 802-4831

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