Terminology
Adjournment:
Occurs when the Tribunal may suspend proceedings for any reason but will
resume them at a later date.
Appeal:
A party who is dissatisfied with the decision of the Tribunal may apply
to the District Court to reconsider the matter. A right of appeal
against any decision of a District Court Judge to the High Court applies
on a question of law only. In both cases this is called an appeal.
Chair and Deputy Chair:
This person is a senior lawyer who is the presiding officer at hearings,
runs directions conferences, ensures that matters proceed to a hearing
as soon as is possible, and is responsible for writing the Tribunal’s
decisions.
Complainant:
Under the 1968 Medical Practitioners Act a complaint of professional
misconduct was prosecuted in the name and on behalf of the complainant.
Under the new legislation the complainant no longer has prosecution
status, the prosecutor being either a Complaints Assessment Committee or
the Director of Proceedings.
To ensure the complainant feels that they still “own the complaint”
the Medical Council has recommended that Complaints Assessment
Committees appoint as prosecutor a barrister who is acceptable to the
complainant and who understands the complainant’s perspective. The
prosecutor will liaise with the complainant, and in most cases will call
the complainant as a witness. The costs of the prosecution will be met
either by the Medical Council, or by the Director of Proceedings, not by
the complainant.
Complaints Assessment Committee:
Means a Complaints Assessment Committee appointed by the President of
the Medical Council of New Zealand under s 88 of the Act.
Decision:
Once a matter has been heard the Tribunal makes a decision which is set
out in writing, signed by the presiding officer on behalf of the
Tribunal and distributed to the parties involved. Whether the charge was
brought by a Complaints Assessment Committee or the Director of
Proceedings, that body will send a copy of the Decision to the
complainant direct. If the complainant has any questions about that
Decision, they should be addressed in the first instance to that body.
Director of Proceedings:
Means the person designated under s 15 of the Health and Disability
Commissioner Act 1994 as the Director of Proceedings. Disciplinary
proceedings against a medical practitioner can only be brought before
the Tribunal by either a Complaints Assessment Committee or the Director
of Proceedings.
Directions Conference:
This is a compulsory meeting between parties, conducted by the Chair or
Deputy Chair, after the medical practitioner has notified the Tribunal
in writing whether he or she wishes to be heard by the Tribunal. It is
usually a telephone conference. It is a discussion about the issues to
be raised at the hearing, how the evidence will be put before the
Tribunal, the date and location of the hearing and any other matters
which have to be resolved before the hearing. The process is relatively
informal, and discussions are confidential. The matters agreed are
recorded by the presiding officer and forwarded to the parties.
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:
- Has been guilty of disgraceful conduct in a professional
respect; or
- Has been guilty of professional misconduct; or
- Has been guilty of conduct unbecoming a medical
practitioner, and that conduct reflects adversely on that
practitioner’s fitness to practise medicine; or
- 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
- 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
- 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
- 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:
- 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
- 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.
Preliminary Matters:
These are pre-hearing procedural steps (sometimes referred to as “Interlocutories”)
which may be taken prior to the hearing. Their purpose is to assist the
presentation of facts at the hearing. The procedures include discovery
(or disclosure) and inspection of documents. The need for any
interlocutories will normally be discussed at the Directions Conference
when timetable deadlines will be indicated.
Interim Suspension:
Imposition of Conditions of Practice At any time after a Notice of
Disciplinary Proceedings has been given to a medical practitioner, the
Tribunal may, if it is satisfied that it is necessary or desirable to do
so having regard to the need to protect the health or safety of members
of the public, make an order that, until the disciplinary proceedings in
respect of which a charge is pending have been determined:–
- The registration of that medical practitioner shall be suspended;
or alternatively
- That the medical practitioner may practise medicine only in
accordance with conditions specified by the Tribunal.
The Tribunal may make an order under this section on the
recommendation of the Director of Proceedings, or a Complaints
Assessment Committee, or of its own motion. Although the Tribunal is not
obliged to give any notice to a medical practitioner that it intends to
make one or other of the above orders, in practice it would be unlikely
to do so without first giving an opportunity for submissions to be made.
However, under s 105 of the Act a medical practitioner may apply at
any time to the Tribunal for the revocation of one or other of the above
orders. Also, the Tribunal may at any time, of its own motion, revoke
one or other of the above orders.
Legal Assessor:
The Legal Assessor, if one is sitting with the Tribunal, may be
called upon during the course of a hearing to advise the Tribunal on
matters of law, procedure or evidence. At the end of the hearing the
Legal Assessor will refer to the relevant legal principles and make any
submissions on the law.
Medical Assessor:
The Tribunal may on occasion appoint a medical assessor for the
purpose of providing advice on medical matters. Notice of Disciplinary
Proceedings: This is the Notice which the Chair must give when required
under s 103 of the Act to convene a hearing of the Tribunal to consider
a charge against a medical practitioner.
Notice of Disciplinary Proceedings:
This is the Notice which the Chair must give when required under s
103 of the Act to convene a hearing of the Tribunal to consider a charge
against a medical practitioner.
Party:
Means either a Complaints Assessment Committee, the Director of
Proceedings, or a respondent medical practitioner in any proceedings
before the Tribunal, and includes any person added to the proceedings.
Reply Checklist:
This is the document (supplied by the Tribunal) which is to be filed
by or on behalf of each party after a Notice of Intention to bring
Disciplinary Proceedings has been received. It is the formal response by
the parties to the matters raised by the Notice of Disciplinary
Proceedings. It should be filed not later than 21 days after receipt of
the Notice of Disciplinary Proceedings. If no checklist is filed on
behalf of the medical practitioner, then the Tribunal may proceed and
the medical practitioner will be entitled to appear and be heard at the
hearing only on such conditions as to payment of costs and expenses or
otherwise as the Tribunal thinks fit and so orders.
Respondent:
The respondent is the medical practitioner who is called upon to
respond to the charge.
Secretary of the Tribunal:
This refers to the secretariat administering the Tribunal from its
office in Wellington.
Phone: (04) 381-6816 Fax: (04)
802-4831
PO Box 11649 Email: mpdt@mpdt.org.nz
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