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:
- The just treatment of all interested parties.
- 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.
- 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.
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:
- 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.
- 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.
- 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.”
- 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.
- Counsel for
the respondent medical practitioner may then cross-examine the witness
on any matter relevant to the case.
- 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.
- The same
procedure is followed for all other witnesses called by the prosecution.
- Counsel for the respondent medical practitioner then makes opening
submissions and calls witnesses in the same way.
- Counsel for the prosecution then has a right to make final
submissions, as does respondent counsel in turn.
- 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.
- 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.
- 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.
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.
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.
Penalties:
(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.
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
Email:
mpdt@mpdt.org.nz
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