in the court of appeal of new zealand ca no. 174101...
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IN THE COURT OF APPEAL OF NEW ZEALAND CA No. 174101
UNDER the Medical Practitioners Act 1995
AND the Judicature Amendment Act 1972
AND the Privy Council (Judicial Committee) Rules Notice 1973
IN THE MATTER OF a decision, dated 4 March 2002, of the Court of Appeal
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
PART l
RECORD SUBMITTED FOR CERTIFICATION FOR FINAL LEAVE TO APPEAL TO
HER MAJESTY IN COUNCIL
Index to Part I
No Description Date Page
1 Affidavit of Miles Roger Wislang
2 Amended Statement of Claim of Miles Roger Wislang
Affidavit of Tania Mureen Turfrey for Medical Council of New Zealand
Amended Statement of Defence of First and Third Defendants
5 Second Affidavit of Miles Roger Wislang
6 Judgment of Wild J. in High Court
7 Notice of Appeal of Miles Roger Wislang to Court Of Appeal
8 Po~nts on Appeal of Miles Roger Wislang
9 Judgment of Blanchard J. in Court of Appeal
Notice of Motion for Conditional Leave to Appeal to Privy l0 Council
1 1 Affidavit Miles Wislang in support of Application for Conditional Leave to Appeal to Privy Council
12 Memorandum Miles Wislang on Application for Conditional Leave
13 Judgment of Blanchard J. in Court of Appeal granting Conditional Leave
14 Order as to Costs in High Court
15 Sealed Judgement of Court of Appeal
5 February 2001 1
28 May 2001 39
16 May 2001 58
5 June 2001 68
25 May 2001 78
21 June2001 80
19 July2001 113
1 October 2001 1 15
4 March 2002 1 19
16 Certificate of Judgment of Blanchard J. granting Final Leave
IN THE COURT OF APPEAL OF NEW ZEALAND CA No. 174101
UNDER the Medical Practitioners Act 1995
AND the Judicature Amendment Act 1972
AND the Privy Council (Judicial Committee) Rules Notice 1973
IN THE MATTER OF a decision, dated 4 March 2002, of the Court of Appeal
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
SCHEDULE OF DOCUMENTS OMITTED FROM RECORD ON APPEAL TO
HER MAJESTY IN COUNCIL
~ a t e d ] September 2002 7
Filed by Miles Roger Wislang, Appellant, whose address for service is
38 Glengarry Avenue, Manly Whangaparaoa,
Auckland. Tel09 428 3388
SCHEDULE
The following is the List of Documents which have been omitted from the
Record of the proceedings on appeal of Miles Roger Wislang to Her Majesty in
Council.
1. List of Documents, dated 16 Mav 2001, of plaintiff, Miles Roqer Wislanq,
for discovery in High Court at Wellington, in proceedings of judicial
review subject of this appeal.
2. Synopsis of submissions of counsel for plaintifflappellant, Miles Roqer
Wislanq, in proceedings of judicial review in High Court at Wellington
and on appeal to the Court of Appeal of New Zealand, subject of this
appeal.
3. Submissions of counsel for First and Third Respondents in proceedings
of judicial review in High Court at Wellington and on appeal to the Court
of Appeal of New Zealand, subject of this appeal.
4. Ap~lications for security for costs of First and Third Respondents
against plaintifflappellant, Miles Roger Wislang, in proceedings of
judicial review in High Court at Wellington and on appeal to the Court of
Appeal of New Zealand, subject of this appeal.
' c C SIGNED at this /q day of ~ ? 0 0 2
Miles Wislang, Appell 2 t
In the High Court of New Zealand
IN THE HIGH COURT OF NEW ZEALAND ---------------- WELLINGTON REGISTRY
UNDER
No. 1
CP NO. 21 9/00 Affidavit of Miles Roger Wislang
5 February 2001 the Judicature Amendment Act 1972
IN THE MATTER OF the Medical Practitioners Act 1995
BETWEEN MILES ROGER WISLANG
Plaintiff
AND
AND
AND
MEDICAL COUNCIL OF NEW ZEALAND
First Defendant
MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Defendant
COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Defendant
AFFIDAVIT OF MILES ROGER WISLANG DATED* DAY OF FEBRUARY 2001
HANNING CONNOR Solicitors
(P J Connor) P 0 Box 10376 DX SP 23544
Phone: 499 3280 Fax: 499 3308 WELLINGTON
email hanning.connor@xtra.co.nz
Counsel G D S TAYLOR
Barrister P 0 Box 5294 DX SP22510
Phone: 495 3451 Fax 495 3458 email: graham.taylor@johnsaImond.co.nz
L
AFFIDAVIT OF MILES ROGER WISLANG
I, MILES ROGER WISLANG, of Whangaparaoa, registered medical
practitioner, swear that:
INTRODUCTION
1. I am the Plaintiff in this proceeding
2. Annexed hereto and marked "MRW l" is a true copy of my
curriculum vitae.
THE COMPLAINT
3. By letter dated 16 September 1998 (a true copy of which is annexed
hereto and marked "MRW 2") the New Zealand Medical Counc;il
(hereafter referred to as "the Council") informed me that a Mr Andrew
Stylianou (also known as Andrew Inglis) had made a complaint to it
about my management of three hair transplant procedures I had
carried out for him in the period 1996 to 1997, and my not holding a
practicing certificate at the material times.
4. By letter (a true copy of which is annexed hereto and marked "MRW
3") of 30 September 1998 1 was notified by the Medical Council of
New Zealand that a Complaints Assessment Committee (hereafter
referred to as "the CAC") had been appointed to consider the
complaint.
THE COMPLAINTS ASSESSMENT COMMITTEE PROCESS
5 By letter (a true copy of which is annexed hereto and marked "MRW
4") of l l November 1998 the CAC informed me of its membership
of three, two medical practitioners and a lay convener, namely, fAr
Jay Clarke, Convener Dr Cathy Miller, Medical Practitioner, Dr John
Barrett, Medical Practitioner, and said:
In the H~gh Court of New Zealand -
No. 1
Afidav~t of Mlles Roqer W~slanq
5 February 2001
3
". . . we are to likely to invite you to advise us with a list of documerts
you believe we should have in the file and to make a written
statement or explanation about the complaint"
I received two further letters from the CAC requesting those
documents and statementlexplanation.
6. By letter (a true copy of which is annexed hereto and marked "MRW
5") of 22 January 1999 to the CAC, I described my consultation and
subsequent surgical and follow-up management of Mr Stylianou, and
enclosed with it a copy of a letter (a true copy of which is annexed
hereto and marked "MRW 6") of mine, dated 3 October 1997, to the
Health and Disabilities Commissioner who had previously
investigated Mr Stylianou's complaint and, by letter (a true copy of
which is annexed hereto and marked "MRW 7") of 28 November
1997, had told me she had dismissed it.
7 . By letter of 29 January 1999 (a true copy of which is annexed hereto
and marked "MRW 8") sent to me on 2 February 1999, the convener
of the CAC thanked me for my written submissions referred to in
paragraph 6 above, and informed me of the venue and time of the
hearing of me which, after an initial postponement from 26 January
1999, was to be held at 6.30 p.m. on the evening of 23 February
1999 at the small Gladstone Room of the Barrycourt Motor Inn arid
Conference Centre in Parnell, Auckland. The letter of 29 January
1999 also pointed out to me that
". . .section 109(2)(b) of the Medical Practitioners Act 1995 states
that-'a medical practitioner is guilty of professional misconduct if
that practitioner, . . .being the holder.. .general registration.. .practices
medicine while not holding a current practicing certificate. "
8. At no time before or during that hearing which I attended with the
CAC, did any committee member refer to any section of the Act other
than 109 (2)(b) in connection with the import of my having practised
without a practising certificate at times material to the complaint of Mr
Stylianou. In particular, the committee made no reference at all to
section 109(l)(f).
In the H~gh Cour! of New Zealand
No. 1
Aff~dav~t of M~ies Roaer W~slanq
5 February 2001
9. The hearing began shortly after 6:30 p.m. with the Convener making
introductions and an announcement of the scope of the meeting.
10. Within 10 to 15 minutes from the opening of the hearing Dr Barrett
announced that he had to leave. He gave no reason for this, but
openly stated that he felt he could trust the other two members,
referring especially to Dr Miller, to hear matters at issue without Iris
participation. Dr Barrett then retired from the hearing, and did not
return to the hearing which then continued for more than two hours.
11. I did not object to Dr Barrett's departure, or to the hearing continuing
with only two members, and I made my representations to the
remaining two members of the committee, answered questions on
matters of informed consent, my procedures of hair transplantation,
various transplant techniques, my practice arrangements, my patient
counseling, the three transplant procedures I carried out for Mr
Stylianou over a period of some 6 months, and my lack of a
practising certificate over that period.
12. During the said hearing, Mr Thomas my techno-surgical design
engineer, research and development associate and friend at hearing,
gave accounts of surgeries that I had performed for him and many
others he had observed me carry out, and of his accompanying me
on my presentations in 1994 at a large international Transplant
congress in Toronto and at departments at the Mayo Clinic and
Foundation in Rochester, Minnesota, USA.
13. The hearing ended with Mr Clarke saying that I would be informed
later concerning the Committee's decision and what action it might
take.
14 On 5 March 1999 1 rece~ved by courler from Mr Jay Clarke, the
convener of the CAC, an aud~o-tape cassette, under cover a hand-
wr~tten letter of his (a true copy of whlch IS annexed hereto and
marked "MRW 9") of 4 March 1999 whlch stated that !he aud~o-tape
had been supplied (not stating when) to the CAC by Mr ~ t y l~ancu h
a " .
The label on the cassette read "Two recordings of Dr Wlslang giving' ,. , l ,-
In the H~gh Court of New Zealand -----
No. l
Affidav~t of Mlles Roqer Wlslanq
5 February 2001
false information"
One such tape I knew of already had been earlier said by Mr
Stylianou to have been secretly made by an investigator,
accompanied by a female accomplice, posing as a consultee in my
surgery at the behest of Mr Stylianou. I had been provided with a
Notes of Evidence of the said tape by the CAC amongst the general
documentation of his complaint, but at no time during the hearing of
23 February 1999, or subsequently, was I questioned directly on ~ t s
contents by the Committee.
16. 1 replied to the CAC by letter (a true copy of which is annexed hereto
and marked "MRW 10") dated 9 March 1999, in which I asserted
possible impropriety of the CAC in its receiving or entertaining such
material after the hearing, or indeed at all; and difficulties regarding
its admissibility as evidence.
17. 1 received no reply to my letter of 9 March 1999, and do not know
whether or not the CAC took into account the contents of the said
audio-tape in any of its deliberations.
THE MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
PROCESS
18. On 22 May 1999 1 received a letter (a true copy of which is annexed
hereto and marked "MRW 11") dated 21 May 1999 from Mr P.
Cartwright, Chairman of the Medical 'practitioners Disciplinary
Tribunal (hereafter referred to as "the Tribunal"), informing me that
the CAC had laid a charge against me which the Tribunal would
proceed to determine. That charge (a true copy of which is annexed
hereto and marked "MRW12"), dated 13 May 1999 and signed by Mr
J. Clarke, convener of the CAC, was also set out in the Tribunal's
"Notice of Intention to bring Disciplinary Proceedings" (a true copy of
which is annexed hereto and marked "MRW 13"), which stated inter
alia that
"The substance of the ground believed to exist, and the particulars
of the charge are:
In the H ~ g h Court of New Zealand
No. 1
Affidav~t of M~les Roqer W~slanq
5 February 2001
The Complaints Assessment Committee, pursuant to Section
93(l)(b) Medical Practitioners Act 1995, charges that Dr Miles
Wislang, Medical Practitioner of Auckland,
(a) in the course of performing hair transplant operations upon
Andrew lnglis (also known as Andrew Stylianou) 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.
being professional misconduct"
19. By letter (a true copy of which is annexed hereto and marked "MRW
14") of 1 1 June 1999, 1 formally admitted this charge of 13 May 1999
and asked that I be permitted to make written or oral submissions to
the Tribunal as to penalty if and when that was apprcpriate.
20. By letter (a true copy of which is annexed hereto and marked "MRW
15") of 16 June 1999 the Tribunal acknowledged receipt of my said
admission of the charge but, quite unexpectedly, also said that
"It will be necessary for the Tribunal to advise the Complaints
Assessment Committee (CAC) and to ask whether the plea of guilty
is accepted. "
In the H~gh Court of New Zealand
No. l
Affidav~t of M~les Roqer W~slanq
5 February 2001
and, further,
"Should the CAC accept the plea the Tribunal needs to consider
whether the plea of guilty is accepted at the level of professional
misconduct. "
21. 1 was unaware at this time of the status of this referral back to the
CAC of my guilty plea to the charge as laid, but I felt reasonably . .
certain from my reading of section 109(2)(b) of the Act (to which the
CAC had drawn my attent~on by ~ t s letter to me of 29 January 1999) 1
that profess~onal misconduct had already been established In terms' . /
Ad- j // h /
of the statute by my formal admission of the charge to the Tribunal
itself.
22 By letter (a true copy of which is annexed hereto and marked "MRW
16") of 3 August 1999 the Tribunal informed me that
". . . the Complaints Assessment Committee has accepted your plea
of guilty at the level of professional misconduct"
The said letter also apologised for delay in communicating this
acceptance of plea to me, explaining that
"It has taken some time for MS Davenpori to contact the Convener
and receive instructions"
The said letter also agreed to allow me to make oral submissions
before the Tribunal on penalty in respect of the said charge to which
I had pleaded guilty, and communicated the date, 16 September
1999, for the Tribunal's hearing of the matter.
23. By faxed letter (a true copy of which is annexed hereto and marked
"MRW 17") of Friday 27 August 1999 to the Tribunal, I requested to
know if the CAC had upheld that part of the complaint against nie
concerning my medical and surgical competence and my case
management of Mr lnglis (Stylianou), andlor what stage the CAC had
reached in their determination of that matter.
24. By letter (a true copy of which is annexed hereto and marked "MRW
18") of Monday 30 August 1999 from the Tribunal I was informed that
the CAC had laid no charge with the Tribunal concerning my medical
and surgical competence or my case management of Mr Inglis, and
that the charge before the Tribunal related only to the matter of the
lapse of my practising certificate.
25. By letter (a true copy of which is annexed hereto and marked "MRW
19") of 3 September 1999 the Tribunal informed me that it had
received from the CAC what it called an "amended charge", and that
the charge of professional misconduct had now been altered to
In the H~gh Court of New Zealand
No. l
Amdav~t of M~les Roqer W~slanq
5 February 2001
8
"incorporate" Section 109(l)(f) of the Medical Practitioners Act 1995.
26. The purported amended charge was enclosed in copy (a true copy
of which is annexed hereto and marked "MRW 20") and was dated
30 August 1999, and signed by MS Davenport, counsel for the CAC,
not the chairman.
27. The purported amended charge bore the time of its fax transmission
from MS Davenport's office to the Tribunal; 17: 10 hrs on 30 August
1999, the working day after my faxed letter ( referred to in paragraph
23 above) to the Tribunal inquiring if my medical or surgical
competence or case management was still at issue; that being also
the date of the Tribunal's reply to me that it was not at issue.
28. The amended charge read
"The Complaints Assessment Committee, pursuant to Section
93(l)(b) Medical Practitioners Act 1995, charges that Dr Miles
Wislang, Medical Practitioner of Auckland,
(a) in the course of performing hair transplant operations upon rvr
Andrew lnglis (also known as Andrew Stylianou) 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 registration
or any practising certificate held by him"
In the H~gh Court of New Zealand
No. 1
Afidav~t of M~les Roqer Wtslanq
5 February 2001
29. The purported amended charge differed from the original charge of
13 May 1999 only in respect of its incorporating into its last paragraph
the reference to section 109(l)(f) of the Medical Practitioners Act
1995 (emphasised in the quotation above).
30. At no time since being informed of its existence have I, either in
writing or orally, pleaded guilty to the purported amended charge. I
believed then, and still believe, that it was not open to the CAC or the
Tribunal to lay a charge against me that I had breached section
109(l)(f), and the Tribunal accepted that view after taking the advice
of senior counsel as related in paragraph 94 below.
31. One reason for my believing that it was not open to the CAC to
amend the original charge in the above-described manner, IS that
there have been no conditions attaching to any practising certificate
or registration I have held since 1969, the year of my full registration
in New Zealand.
32. 1 am unaware of any evidence received at any time by the CAC or the
Tribunal which could support or form the basis of the amending
portion of the said amended charge; and I believe that no evidence
of probative value exists or could exist in respect of the amending
portion.
33. By letter (a true copy of which is annexed hereto and marked "MRW
21") of 9 September 1999 the Tribunal confirmed a new time and
date of hearing as l0 a.m. on 7 October 1999; and the venue as the
Victoria Room of the Centra Hotel, Auckland.
34. 1 received no further communication from the Tribunal, or the CAC,
until late morning of 6 October 1999, the day before the proposed
hear~ng. That morning, the Tribunal faxed to me an affidavit (a true
copy of which is annexed hereto and marked "MRW 22") sworn in
Auckland by a Dr Russell Knudsen the day before. The said affidavit
had been faxed under cover of a letter (a true copy of which is
annexed hereto and marked "MRW 23") from the Tribunal stating
only that the affidavit was for my "information". I had received no prior
notice of the said affidavit's commissioning or acce?tance by the
CAC or the Tribunal, and the covering letter did not invite me to reply
to it, nor did it say that it had been or might be going to be taken into
account by the Tribunal.
In the Htgh Court of New Zealand -----
NO. 1
Affidavtt of Mtles Roqer W~slanq
5 February 2001
34. Dr Knudsen is known to me as an Australian transplant surgeon who
resides and works in Australia but who has travelled to Auckland
from time to time since 1986 to do hair transplants on New Zealand
residents, and as one of two Australian operators in the field wllo
carried out transplant work for the complainant Mr Stylianou after I
had.
35. Dr Knudsen deposed in paragraph 3 of his said affidavit that he had
been
". . .. asked by the counsel for the Complaints Assessment Committee
to comment on the type of work carried out by hair transplant
surgeons and whether they need to be medically qualified to carry
out this work"
In the H~gh Court of New Zealand
No. 1
Amdav~t of M~les Roqer W~slanq
5 February 2001
37. Later in his said affidavit, Dr Knudsen gave a brief description of
some of his methods and his view on the necess~ty for transplant
surgeons to be medically qualified.
38. Dr Knudsen ended (by paragraphs 6 to 9) his said affidavit with some
criticism of the hair transplanting I had done for Mr Stylianou,
implying that I generally or invariably employed only "older"
techniques using larger grafts.
39. Dr Knudsen has never visited my practice,,or indeed inquired directly
of me concerning details of my procedures. His implication about my
pract~ce is in fact incorrect. I have employed, in many appropriate
cases over more recent years, the whole range of recently developed
transplant methods including mini- and micro-grafting. In respect of
this, I provided an affidavit dated 21 October 1999 of Dr Stephen
Gilbert, a senior plastic surgeon of Auckland, (a true copy of which
is annexed hereto and marked "MRW 24") to the Tribunal and later
directly to the Council.
40. The facts deposed to by Dr Gilbert and my techniques in practice had
been fully canvassed by me in the hearing of the complaint by Mr
Stylianou by the CAC. The complaint about my treatment of Mr
Styl~anou was dismissed by the CAC.
xCeVLv
41. By letters (true copies of which are annexed hereto and marked
"MRW 25" and "MRW 26") of 6 October 1999, faxed late the same
afternoon to the Tribunal, I requested an adjournment of the hearing
set down for the following day; objecting to both the content and the
very late production of Dr Knudsen's said affidavit, and stating my
need to take legal advice on it and if necessary to file an affidavit in
reply.
42. While I was at no stage before the CAC or the Tribunal represented
by counsel or a solicitor, I did take legal advice from several law
academics, one in the UK, (on statutory interpretation) and two legal
practitioners (on tribunal and court procedure) starting in mid
September 1999; and conducted my dealings with the CAC and
Tribunal somewhat in the light of what I was advised by them. The
advice was given orally; not in writing. I retained none of the advisers
to appear for me in any of the hearings before the CAC and the
Tribunal and, although not asked to, prior to informing them of the
substance of my inquiries to them I undertook not to disclose thcir
identities in the current or possible future stages of the proceedings.
It was only on those terms that those advisers stated they were
agreeable to give their opinions.
43. 1 telephoned the Tribunal office in Wellington late on 6 October 1999
and was told that the adjournment I had requested had been refused
by the Tribunal, but that the Tribunal would permit me to address the
matter of the said affidavit as a preliminary point at the hearing the
next day; so I confirmed my intention to attend the said hearing.
44. On 7 October 1999, 1 attended the scheduled hearing at which my
friend in attendance was Dr Bruce Conyngham. Dr Conyngham later
made an affidavit (a true copy of which is annexed hereto and
marked "MRW 27") sworn on 21 October 1999, which I requested of
him for filing in proceedings of judicial review seeking a declaration
of invalidity of the amended charge. The affidavit was not put before
the Tribunal at any time, nor to the District Court or the High Court,
but remained in my possession.
In the High Court of New Zealand
No. 1
Afidav~t of M~ies Roqer W~slanq
5 February 2001
45. At the venue for the hearing of 7 October 1999 1 was informed by MS
Gay Fraser, the Secretary of the Tribunal, that the start of the hearing
would be further delayed as the Tribunal members were still
conferring in an adjacent room, the "Wellesley Room".
46. At approximately 10:35 a.m., some 15 minutes prior to the beginning
of the hearing, I requested from the Tribunal Secretary, MS Fraser,
copies of my faxed letters of 6 October 1999 referred to in paragraph
41 above, explaining that I had mislaid my own. MS Fraser then re-
entered the Wellesley room where the Tribunal was still conferring.
Upon her return some minutes later, she explained to me that she
would need to have the letters faxed from the Wellington office of the
Tribunal as there were no copies of them at the hearing venue. I
expressed no surprise at this. MS Fraser then took the lift downstairs
and returned with and gave me copies of the two faxed letters. They
bore the fax number of the Tribunal's Wellington office and their
transmission times, 09:42 and 09:43, respectively, on 7 October
1999. 1 observe that the statement of defence of the Council and
CAC claims in paragraph 17 that they have no knowledge of those
faxes and therefore deny my pleading in respect of them.
47. The hearing by the Tribunal began at 10:52 a.m. Throughout the
hearing Dr Conyngham, my friend in attendance, sat with me.
48. A copy of the "Notes of Evidence" of the hearing (a true copy of which
is annexed hereto and marked "MRW 28") was provided to me by
the Tribunal within one week of the hearing. It was directly made by
a stenographer during the hearing, not from a taped audio recording
of the proceedings, as the sound recording equipment, although set
up, was not working. The earliest of the opening statements of the
hearing are unrecorded, even by the Notes of Evidence whose
introductory part (on page 2, lines 1-7) is, by my recollection,
incomplete and not verbatim.
49. The hearing commenced with introductions of the Tribunal members
and identification of those in official attendance; and counsel for the .. - , - , CAC, MS Davenport, Dr Conyngham, and me I requested to know' ' -L A *
,-- / whether a legal assessor to the Tr~bunal was In attendance aniwas s
, ; ,+< / : .-:.LAr-';\ .
told by the Char, MS Brandon, that she was a barr~ster From her ': L , C'
9 ya 3. .?a reply I assumed, at the t~me, that MS Brandon bel~eved she could L
7 ' 3
Ln the H~gh Coud of New Zealand --
NO. l
Affidav~l of M~les Roqer W~slanq
5 February 2001
fulfil all the functions normally undertaken by the legal assessor to
the Tribunal at a hearing.
50. 1 was then invited by the Chair to make submissions on the said
affidavit of Dr Knudsen by way of taking my preliminary point on it. In
doing so I pointed out (Notes of Evidence pages 1-6)
(a) the lateness of both the filing and supply to me of the affidavit,
and
(b) the inappropriateness of the CAC appearing to solicit, at the
stage it did, testimony on my clinical management of Mr Stylianou
which was not the subject of any charge.
51. 1 also asserted the inappropriateness of the CAC counsel's soliciti~~g
and proffering to the Tribunal the views of Dr Knudsen upon the
nature of hair transplantation and upon the necessity for medical
qualification of operators in that field. I submitted to the Tribunal that
Dr Knudsen's views on the two matters were irrelevant as both had
been decided or understood some years prior by the Medical Council
when it designated hair transplantation as a sub-specialty of surgery.
52. In her reply to my submissions, MS Davenport wondered (Notes of
Evidence page 6, lines 12 & 13) if the issue of Dr Knudsen's affidavit
"would be resolved if the charge is put to Or Wislang". -
53. 1 countered MS Davenport's suggestion by stating to the Tribunal that
I had already formally pleaded guilty by letter (see paragraph 19
above) and was at the hearing only to make submissions as to
penalty; as had already been acknowledged by the Tribunal in 'ts
letter to me of 3 August 1999 (see "MW 19" referred to in paragraph
25 above).
54. The Tribunal then upheld my objections to the admission into
evidence of the affidavit of Dr Knudsen substantially on the grounds
(a) and (b) referred to in paragraph 50 above, but at the same time
made what seemed to me to be a confusing reference to my pre-
hearing plea of guilty (Notes of Evidence page 6, lines 20-24).
In the H~gh Court of New Zealand
No. 1
Affidav~t of M~les Roqer Wlslanq
5 February 2001
55. Counsel for the CAC then proceeded to make submissions as if I had
in fact pleaded guilty to the amended charge in all its particulars
(Notes of Evidence p7, lines 3-1 1).
56. In reply, I asserted to the Tribunal that I had not pleaded guilty to the
amended charge, but only to the original charge (Notes of Evidence
p9, line 6-9).
57. The Tribunal then appeared to me to continue as if addressing on!y
the matter of the amended charge (Notes of Evidence p.9, lines 16-
22).
58. 1 soon (Note of Evidence p.8, lines 20-27, and p.10, lines 6-27)
contested in submissions the penalty sought by MS Davenport,
counsel for the CAC; that of my being struck off the medical register.
MS Davenport claimed this was necessary by reason, inter alia, of my
being bankrupt, but there had be no charging of me based on that
status and I believed that there was no provision for it under the Act.
Invoking bankruptcy again at the end of her written Opening
Submissions (a true copy of which is annexed hereto and marked
"MRW 29") in their paragraph 17(e) under the heading of "Facts", MS
Davenport suggested also that my deregistration be permanent.
59. 1 countered MS Davenport's reasoning by stating that my status in
bankruptcy did not preclude payment by me, or by others on my
behalf, of such fine as the Tribunal might impose; and that there were
sanctions other than fining or striking off which were open to the
Tribunal to impose. (Notes of Evidence p. 10, lines 8-21).
60. The Tribunal then questioned me, and allowed MS Davenport to
question me, on my prescribing practices, sourcing of medications,
operation pre-medication, local anaesthetic technique, nitrous oxide-
oxygen ("Entonox") administration, emergency equipment, patient
support procedures, patient flow numbers, patient counseling, the
extent and layout of my private surgical suite, the geographic location
of my surgical facility, sterile procedure, surgical assistants, my fee
structures, bio-surgical research, scientific publications and
, -.
In the H~gh Courf of New Zealand --
No. l
5 February 2001
communications, advertising of my services, responses to advertis~ng
of my services, continuing education, postgraduate work in England,
my association with a research facility in Auckland University, the
specialist Journals I receive, my appointment system, peer
surveillance of my practices, and whether if my bankruptcy was
annulled I intended resuming private practice.
61. During the questioning by the Tribunal I was closely questioned by
Member Dr F.E. Bennett, IntensivistlAnaesthetist, concerning my
local anaesthetic procedures, drug administration and safety
protocols. (Notes of Evidence p.21, lines 28-31; p.23; p.24; p.25;
p.26, lines 1-18). In answering I referred to the existence of an
affidavit filed by a specialist anaesthetist patient of mine in support of
my High Court application for annulment of bankruptcy awaiting
hearlng in late November 1999 (a true copy of which is annexed
hereto and marked "MRW 30"). (Notes of Evidence p.26, lines 14-
18).
62. 1 had earlier offered (Notes of Evidence p.8, lines 30-31 and page 9,
lines 1-5) the Tribunal an affidavit I had in copy at the hearing from
Dr Stephen Gilbert, a senior specialist plastic surgeon resident in
Auckland, which could have corroborated some of my responses to
the Tribunal's questioning of me referred to in paragraphs 60 and 61
above. The Tribunal refused this affidavit on the ground that it was
being offered too late. Dr Gilbert later filed a new affidavit (a true copy
of which is annexed hereto and marked "MRW 31") addressing my
training, professional standing, teaching, research, surgical
techniques, and competence, which was placed before the Tribunal
before the resumed hearing.
63. For the Tribunal, its Chair MS Brandon from time to time agreed that
my surgical competence and patient management were not in
question, but nevertheless maintained that in respect of my practicing
medicine without a practicing certificate that the Tribunal was
". . .. interested in the practising of medicine part and yes, the central
focus of the Inquiry is public safety because that is what we are
required to ascertain. It's not addressing your competency but it is
important for the Tribunal to understand what the practice of
&
In the H~gh Coult of New Zealand
-
No. 1
Affidav~t of Mtles Roqer Wtslanq
5 February 2001
medic~ne involved in terms of the charge you are charged with"
(Notes of Evidence p. 25, lines 17-21).
64. 1 found it impossible, "on-the-run" in hearing, to understand the
meaning or the purpose of the self-direction of the Tribunal alleged
by this statement. This, together with lines of questioning followed by
Dr Bennett, (Notes of Evidence p.21-25), led me to question the real
focus of the Tribunal's attention in hearing. I therefore repeatedly
inquired of the Tribunal whether it was not in fact attempting to
ascertain my competence, and whether in its opinion I was a danger
to patients or the public as an operator, with or without a practicing
certificate (Notes of Evidence p.25, lines 14-1 5; p.26, lines 7-8; p. 1 5,
lines 15-26). 1 also pointed out to the Tribunal that, if safety was at
truly at issue, I was willing to submit to proper and separate
assessment of that, not by the Tribunal but by the Medical Council
itself, as the Act provides for in cases of doubt.
65. At the time the statement referred to in paragraph G3 above was
made, I also believed, in respect of its second sentence, that I had
adequately addressed (see paragraph 51 above) the Medical
Council's own prior designation of hair transplantation as a surgical
sub-specialty, and therefore what it involved as part of the practice of
medicine.
66. Nevertheless I continued to answer the Tribunal's questions freely,
including some put to me to explain my failure to renew my practicing
certificate, and others on what I perceived the functions of practicing
certificates to be.
67. Concerning the bankruptcy adjudication of 1 April 1998, 1 related to
the Tribunal (as I had earlier to the CAC) how that had arisen not
from any practice or commercial mismanagement, but from
enforcement by the Rodney District Council of l o w ~ r court costs
awards made against me in environmental legal proceedings whilst
those were awaiting hearing on appeal by me in the Court of Appeal.
(Note of Evidence p.13, lines 26-29)
68. 1 also related to the Tribunal how, immediately after the adjudication
in bankruptcy, I had applied and been given permission by the
/ &
In the H~gh Court of New Zealand
No. 1
Affidavtt of M~les Roqer W~slanq
5 February 2001
Official Assignee to continue working in my practice as a self-
employed person; but that permission was revoked within one month
because Mr Stylianou had communicated his complaint to the Offic~al
Assignee even prior to my receiving notice of it from the Medical
Council (Notes of Evidence p. 13, lines 22-31 ; p. 14, lines 1-20).
69. The hearing concluded with the MS Brandon announcing that the
Tribunal would adjourn the hearing to allow me
"...within 14 days of today's date to provide any further such material
by way of character evidence or any evidence relevant, having heard
the thrust of our inquiry, and the nature of our inquiry so far as safety
public issues are concerned" (Notes of Evidence p.28, lines 9-1 2)
and for MS Brandon to
"...invite MS Davenporf within 7 days after that to make any
submissions by way of comment on that material" (Notes of Evidence
p.28, lines 12-13)
following which she said the Tribunal would "reconvene as soon as
possible". (Note of Evidence p.28, line 14).
Reasons stated at the close of hearing by MS Brandon for allowing
the adjournment and opportunity for me to submit further material,
were that the Tribunal believed that when the hearing commenced I
had not realised that "the Tribunal was considering penalty and thst
those penalties included removing your name from the register"
(Notes of Evidence p. 28, lines 1-3; see also p.29, lines 7-8), that I
was "not prepared to address the charge or penalty" (Notes of
Evidence p29, lines 6-7), and that "we are concerned at the gravity
of this hearing for you, potentially, and we would like to ensure that
we have all the information that we should have in determining this
charge" (Notes of Evidence p.28, lines 15-1 7).
71. MS Brandon then announced that in the meantime the Tribunal
would make an Order under Section 104(l)(a) of the Act to suspend
my medical registration (Notes of Evidence p.28, lines 17-19), but at
the hearing gave no reasons for that. -
In the H~gh Court of New Zealand
NO. 1
Affidav~t of M~les Roqer Wtslanq
5 February 2001
72. Finally at the hearing (Notes of Evidence p.29, lines 12-1 5) 1 ~nformed
the Tribunal of the likelihood of a request by me for disclosure of
documents held by the Tribunal and the CAC, in respect of which MS
Brandon assured me of an early response by MS Davenport, counsel
for the CAC.
73. 1 requested disclosure of documents by letter of l l October 1999 (a
true copy of which is annexed hereto and marked "MRW 32") to the
Convener of the CAC, and was supplied with a number of
documents.
74. The Order suspending my registration referred to in paragraph 71
above (a true copy of which is annexed hereto and marked "MRW
33") was dated 8 October, signed on 13 October, and faxed to me on
14 October 1999. It was followed by courier delivery ot the original to
me at my home. The Order factually incorrectly states, as a reason,
that I had pleaded guilty to the amended charge. Amongst other
reasons the Order gave for suspending my medical registration was
that the Tribunal had determined that I had
"demonstrated a lack of insight, judgment and ability to organise (my)
affairs. "
75. After the hearing before the Tribunal on 7 October 1999, 1
communicated by fax with the CAC and the Tribunal several times.
The purpose of these communications (true copies of which are
annexed hereto and marked collectively "MRW 34'7, consisting of a
Memorandum and letters, was
(a) to obtain discovery, referred to above, of documents relevant
to the procedures, inquiries, information and determinations of tile
CAC and the Tribunal in this matter; and
(b) to expeditiously, by explanation to the Tribunal, resolve the
matter of the amended charge which I believed was an invalid charge
or a nullity, and thus unable to be laid or sustained against me.
In the H~gh Court of New Zealand --
No. l
Affidav~t of M~les Roqer W~slanq
5 February 2001
76. True copies of the responses to those faxes are annexed hereto and
collectively marked "MRW 35".
77. The grounds of my assertion to the Tribunal that the amended charge
was invalid were laid out in my Memorandum (a true copy of which
is annexed hereto and marked "MRW 36") dated 11 October 1999.
78. At no time since gaining my Full Medical Registration in New
Zealand, or at any time of my working career as a hair transplant
surgeon in New Zealand, has my registration or any practicing
certificate I have held been subject to any condition.
79. Hair transplantation is not recognised as a category for vocational
registration, and a specialist in that area conducted his or her
practice under a general registration. The categories of Vocational
Registration are listed in both the Council's 1999 Annual Report and
its APC information sheet ( true copies of the relevant page of which
are annexed hereto and marked "MRW 37").
80. By my Memorandum of 11 October 1999 referred to in paragraph 77
above, I had objected to the Tribunal concerning
(a) The Tribunal's acceptance and further entertaining of the
amended charge; and
(b) The Tribunal's appearing to maintain that at the hearing of 7
October 1999 1 had pleaded guilty to the amended charge; when I
had not so pleaded then or at any time.
81. By the Memorandum, I also informed the Tribunal that should the
Tribunal consider that I had pleaded guilty to the amended charge,
that my plea to the amended charge was changed to not guilty.
However, neither in correspondence nor by other means at that time
did the Tribunal explicitly rule as to whether it had accepted or
rejected such change of plea.
In the H~gh Court of New Zealand
NO. 1
Afidavlt of M~les Roqer Wlslanq
5 February 2001
82. By letter to me of 20 October 1999 (a true copy of which is annexed
P-3W-L-
hereto and marked "MRW 38") the Tribunal claimed (incorrecrly
according to the notes of evidence, the written submissions, and my
recollection) that at the hearing of 7 October 1999 MS Davenport,
counsel for the CAC, had made submissions to the effect that that
sections 9 and l 0 of the Medical Practitioners Act 1995 applied to, or
rather defined or extended the meaning of "conditions" of medical
registration andlor practicing certificates referred to in section
109(l)(f) of the Act which the amended charge against me purported
to incorporate. In fact, no one at all made any reference to those
sections.
83. In its letter of 20 October 1999 referred to in paragraph 82 above, the
Tribunal also stated that it was deferring its decision on the CAC's
interpretation of sections 9 and 10 in respect of the amended charge
until its resumed hearing on 11 November 1999 when it would finally
determine this and other matters; and that the
"...correct interpretation of the legislative provisions is a matter
ultimately for the Tribunal to determine."
84. By letter (a true copy of which is annexed hereto and marked "MRW
39") of 22 October 1999 to the Tribunal, I claimed that the CAC was
seriously in error in respect of its claimed application or interpretation
of sections 9 and 10 of the Act. I further claimed that the Tribunal
should not defer its determination concerning the error until the
resumed hearing on 11 November, but immediately refer the matter
to its legal assessor for an opinion. I asked to be provided with a
copy of any such opinion obtained. \
85. The Tribunal replied, by letter (a true copy of the relevant page of
which is annexed hereto and marked "MRW 40") of 28 Octobor
1999, that it agreed that
". . .the appointment of a legal assessor to attend at the hearing may
be desirable in this case given the nature of the issues which have
In the H~gh Court of New Zealand
No. 1
Affidav~t of M~les Roqer W~slanq
5 February 2001
. . , arisen " . . . ,.. , .... . . . , . . I , , \ \
., , '\, 7' ' ~ , . ,
F , i
%,p, S; . I /
The Tribunal, up to that time, had not stated that a legal
would be present at the resumed hearing. The Tribunal had also not
stated whether or not it would refer my objection to the amended
charge to a legal assessor for an opinion prior to the resumed
hearing; and no copy of any such opinion was provided to me.
86. In accordance with the ruling of the Tribunal referred to in paragraph
69 above that I would be permitted to adduce further evidence and
submissions prior to its resumed hearing, I submitted two affidavits
to the Tribunal. They were sworn respectively by Dr Stephen Gilbert,
plastic and reconstructive surgeon of Auckland, and Dr Paul Wilson,
specialist anaesthetist of Tauranga. True copies of the affidavits are
annexed hereto and marked "MRW 31" and "MRW 41" respectively.
87. MS Davenport, counsel for the CAC, made submissions (annexed
hereto in true copy and marked "MRW 42") dated 29 October 19S9,
in reply to those of mine to the Tribunal referred to in paragraphs 75,
77 and 84 above. In paragraph 5 of her submissions, MS Davenport
stated her argument in favour of her earlier interpretationlapplication
of sections 9 and 10 of the Act in relation to section 109(l )(f) referred
to in paragraph 82 above. By letter of 3 November 1999 (a true copy
of which is annexed hereto and marked "MRW 43") 1 sought to
reserve the right to reply to the objection in MS Davenport
submissions concerning the admissibility of material in the affidavit
of Dr Gilbert referred to in paragraphs 62 and 86 above.
88. 1 took advice and formed the view that the argument raised by MS
Davenport was specious and gravely flawed; and that Section
109(l)(f) of the Act, by reason of itself or any purported importation
of meaning from Sections 9 and 10, could have no application
whatever to the question of my practicing without a practicir~g
cert~ficate when no conditions, as defined by the Act, have attached
to my general medical registration or to any practicing certificate I
have held.
89. 1 therefore believed, contrary to the view of MS Davenport, that the
charge of my practicing without a practicing certificate could not carry
the penalty of my being struck off the New Zealand medical register
as contemplated by the amended charge being promoted by hls
In the H~gh Court of New Zealand --p-
No. 1
Affidavtt of M~les Roqer W~slanq
5 February 2001
Davenport; and apparently accepted as a proper charge by the
Tribunal.
90. 1 believed that, given the course of the Tribunal's activities and
thinking I had observed and refer to in paragraphs 57, 80, 82 and 89
above, and despite my efforts by written representations to the
Tribunal over some weeks, the Tribunal would, at the resumption of
the hearing on 11 November 1999, continue to entertain the
amended, improper charge against me. I considered that there was
a significant risk that I would be wrongfully struck off the New
Zealand medical register.
91. 1 believed that severe personal and professional prejudice would
result to me from being struck off the medical register as a result of
the Tribunal's wrongfully entertaining the amended charge and its
persistent false claim that I had pleaded guilty to it.
92. 1 was advised and believed that the statutory appeal against my being
struck off the medical register would be strongly opposed by the CAC
andlor the Tribunal, and be perhaps long-delayed and very costly
financially to me; and would not, if successful, fully correct the
damage done to me from a wrongful striking off.
93. 1 took advice and formed the view that my correct recourse was to
undertake proceedings of judicial review, seeking an interim
injunction to restrain the Tribunal from entertaining, under its
misdirection in law, the amended charge.
94. 1 received from the Tribunal a Minute (a true copy of which is annexed
hereto and marked "MRW 44'7, dated 4 November 1999, saying that
my submissions, and those of MS Davenport, concerning the
amended charge had been referred on 1 November 1999 to Mr.
Raynor Asher Q.C. as legal assessor who (the Minute stated) had
recommended (on the same grounds that I had submitted to the
Tribunal) that the amended charge be dropped and the original
charge be reinstated; and that this had been done.
95. The said Minute further stated that at the resumed hearing of 11
November 1999 the Tribunal would receive from the parties only
In the H~gh Court of New Zealand ---
No. l
Afidav~t of M~les Roqer Wlslanq
5 February 2001
submissions as to penalty of the original charge to which I had
originally pleaded guilty; and that the affidavit of Dr Stephen Gilbert
would be "admitted and considered by the Tribunal to the extent only
that it contains evidence on the nature of testimony as to Dr
Wislang's good character and professional reputation".
96. By faxed letters ( true copies of which are annexed hereto and
marked "MRW 45") of 5 and 8 November 1999) to the Tribunal I
submitted, inter alia, that in the light of the dropping of the amended
charge the order of suspension of my medical registration should be
revoked forthwith; that is, before the resumed hearing of 11
November 1999.
97. By fax (a true copy of which is annexed hereto and marked "MRW
46") of 8 November 1999 the Tribunal replied that all matters raised
by my said letter of 5 November 1999 would be dealt with at the
commencement of the resumed hearing on 11 November.
98. By further letters (true copies of which are annexed hereto and
marked "MRW 47" and "MRW 48") of 9 November 1999, tlie
Tribunal clarified its approach to my requests and outlined the order
of proceeding for the resumed hearing.
99 The resumed hearing took place on 11 November 1999, its first
session being occupied by the first of my submissions as to penalty;
which are recorded in the 14-page document "Notes of Evidence (a
true copy of which is annexed hereto and marked "MRW 49'7, which
was transcribed directly to hard copy by a stenographer as the first
session of the hearing proceeded. A copy of it was supplied to me at
the end of the first (morning) session.
100. The afternoon session was recorded and not immediately
transcribed. It has never been made available to me except for a half
page (page 15) statement of the "Findings of the Tribunal" (a true
copy of which is annexed hereto and marked "MRW 50") which were
delivered at the conclusion of the hearing.
In the H~gh Court of New Zealand --
No. l
Afidav~t of M~les Roqer W~slanq
5 February 2001
101. The second session of the hearing had begun with my citing and
suggested application of certain case law; most of those authorities
being referred to by the Tribunal in a Supplementary Decision it
issued (see paragraphs 106 and 107 below). Counsel for the CA",,
MS Davenport then made oral submissions, expanding upon her
written one (a true copy of which is annexed hereto and marked
"MRW 51") to which I then replied.
102. Finally, Mr R.Asher, the legal assessor to the Tribunal, was asked by
the Tribunal to address it concerning his view of the issues raised at
hearing; which he did; in the style of submissions amounting at timas
to a directing of the Tribunal.
In the H ~ g h Court of New Zealand
No. 1
Aftidav~t of M~les Roqer W~slang
5 February 2001
103. The Tribunal then retired to consider its decision; returning soon after
to make its oral statement of the "Findings of the Tribunal".
104. On 17 November 1999 the Tribunal issued what it termed an "Interim
Decision" concerning the original charge against me by the CAC.
This "Interim Decision" (a true copy of which is annexed hereto and
marked "MRW 52") merely confirmed the "Findings of the Tribunal"
it had delivered at the conclusion of the resumed hearing; giving no
reasons for its findings, but stating that a "reasoned decision",
together with a costs invoice, would follow later.
105. Whilst still awaiting the "reasoned decision", on 9 December 1999 (at
the end of the 20 working day time limit for appeal against the
Tribunal's decision) I lodged a notice of appeal against the "interim
decision", serving the Tribunal with a copy the same day.
106. On 14 December, I received from the Tribunal a document (a true
copy of which is annexed hereto and marked "MRW 53") dated 10
December 1999, called "Supplementary Decision--Reasonsn.
107. The Supplementary Decision stated that in addition to the $8500 fine
imposed and already announced, the Tribunal had made an order
against me for costs of some $18,300 ; that being 35% of all of the
costs of the CAC and the Tribunal for the hearings on both 7 October
and 11 November 1999 and interlocutory activities; as well as the
costs of appointing and retaining the Tribunal's legal assessor, Mr
Asher.
108. It was and is my belief that the award of costs against me was
unlawful.in that the total costs of the proceedings were unnecessarily
and avoidably inflated by errors of both the CAC (in its wrongfully
conceiving and persistently promoting the amended charge) and of
the Tribunal (in its accepting and initially entertaining the amended
charge). Those errors of the CAC and the Tribunal also both
occasioned the retention of Mr Asher.
In the H ~ g h Court of New Zealand
No. l
Afidav~t of M~les Roser W~slanq
5 February 2001
COSTS ISSUES AND ACCESS TO INFORMATION
109. By Notice of Appeal dated 9 December 1999 ("MRW M"), 1 appealed
to the Auckland District Court, pursuant to section 116(4)(a) of the
Medical Practitioners Act, against the costs award made against me
by the Tribunal. A true copy of my grounds of appeal is annexed
hereto and marked "MRW 55".
110. On 28 March 2000 1 faxed a letter (a true copy of which is annexed
hereto and marked "MRW 56") to the Medical Council CAC
Administrator asking for a copy of the legal assessor's opinion(s),
urgently because of the hearing date for my appeal. The request was
intended to obtain the legal assessor's report or reports involved in
the relevant item in the costs order.
11 1. 1 received a reply dated 3 April 2000 (a true copy of which is annexed
hereto and marked "MRW 57") to my faxed letter of 28 March 2000
from MS Davenport, stating the Medical Council had advised that it
L 0
did not have any opinion(s) from the CAC's legal assessor
112. There followed an exchange of five faxed further letters, all dated 3
April 2000 (dated 3 April 2000 (true copies of which are annexed
hereto and marked "MRW 58" to "MRW 62"), between MS
Davenport and me.
11 3. On 4 April 2000 1 wrote to the Tribunal, by faxed letter (a true copy of
which is annexed hereto and marked "MRW 63") asking to be
supplied with copies of the invoice and account for the fee of the
legal assessor referred to in the costing part of the Decision of the
Tribunal.
114. By letter of 5 April 2000 (a true copy of which is annexed hereto and
marked "MRW 64"), the Secretary of the Tribunal informed me that
the Medical Council, not the Tribunal, held all accounts and invoices
for the CAC. Such of those as I had requested were not supplied to
me by the Secretary of the Tribunal.
11 5. On the 5 April 2000, by faxed letter (a true copy of which is annexed
hereto and marked "MRW 65") 1 therefore requested the Secretary
of the Medical Council to supply me with those accounts and
invoices, again stressing urgency for supply because there were only
five days left before the hearing of my appeal.
116. My letter of 5 April 199 was not replied to by the Secretary of the
Medical Council, its addressee, but by the same CAC Administrator,
MS K. Glen, writing on behalf of the President, whom MS Davenport
said had instructed her to reply to my earlier request (see paragraphs
110 and 11 1 hereof) and say that the Council did not have any
opinion(s) from the CAC's legal assessor. MS Glen's reply (a true
copy of which is annexed hereto and marked "MRW 66") stated that,
as usually made up and supplied to the parties as an overall costs
schedule,
In the H~gh Court of New Zealand
No. 1
Atfidav~t of M~les Roqer W~slanq
5 February 2001
"the (costs) invoice is comprised as a whole and is not broken down
into individual components. "
117. However, having seen the costs breakdown on page 18 of the
Decision of the Tribunal (Exhibit "MRW 52"), 1 knew that MS Glen's
assertion did not apply in my case and so, on 7 April 2900, 1 re-faxed
MS Glen reiterating my request for the individual invoice(s). A copy of .
my faxed letter of 7 April 2000 is annexed hereto and marked "MRW
67".
118. MS Glen replied by her letter of 11 April 2000, not faxed but sent by
ordinary post, and thus received by me on 13 April 2000, two days
after the hearing of my District Court appeal. MS Glen's said letter (a
true copy of which is annexed hereto and marked "MRW 68")
complained that my insistence upon urgent supply was
unreasonable. However, her letter did enclose a copy of an invoice
(included in true copy with "MRW 68) from a barrister, MS B. Klippel
of Auckland, claiming $871.88 from the Medical Council for her
attendances and advice to the CAC. The said invoice itemised
attendances and advice from 26/4/99 to 3011 1/99, but was dated
14/5/99 and bore a Council date-stamp, signed "K.GlenW, of 25/5/99.
119. Observing that the said invoice of MS Klippel was for $871.88 only,
and not for the much larger figure of $8606.02 claimed for the CAC
legal fee itemised on page 18 of the Tribunal's Decision, I wrote, by
faxed letter of 13 April 2000 (a true copy of which is annexed hereto
and marked "MRW 69") requesting to know whether the invoice MS
Glen had supplied me with represented all the fees of legal
assessors, and also asked her to provide me with the invoices, for
services to the CAC in my case, of prosecuting counsel MS I<.
Davenport.
120. On 22 April 2000 1 received from MS Glen an undated letter (a true
copy of which is annexed hereto and marked "MRW 70") replying to
mine of the 13 April 2000. It enclosed the requested invoices of MS
Davenport but did not confirm that the sole invoice of MS Klippel
In the H ~ g h Court of New Zealand --
No. l
Affidavit of M~les Roqer W~slanq
5 Februarv 2001
2 8
which she had supplied to me did represent all of the CAC legal
assessor fee(s) in my case.
By letter of 26 April 2000 (a true copy of which is annexed hereto and
marked "MRW 71") to MS Glen, I repeated my request to be told the
total fee for the legal assessor(s), and stated my reason for doubti~ig
that already claimed. MS Glen replied by letter of 4 May 2000 (a t n ~ e
copy of which is annexed hereto and marked "MRW 72") in which
she said that an invoice had been incorrectly billed to my case, and
that she had advised the Trlbunal of this; with the result that the legal
assessment costs for my case would be reduced by $7,831.02.
122. In respect of the costs error the Tribunal issued an Erratum, dated 18
May 2000 (a true copy of which is annexed hereto and marked
"MRW 73").
123. 1 observed that the said invoices of MS Davenport claimed some
considerable fees for attendances, between 27 September 1999 and
6 October 1999, upon Dr R. Knudsen, as well as the LAC Convener,
and MS Gay Fraser, the Secretary of the Tribunal, concerning the
drafting of and the legal argument about the affidavit of Dr Knudsen
referred to in paragraphs 42-48, 52-53, and 60-64 above, which the
Tribunal refused to admit.
124. 1 believed, on the grounds that it was irrelevant to the issue of penalty
in respect of the charge I had admitted, that the affidavit of Dr
Knudsen should not have been included in calculating the Tribunal's
costs for the award against me, both in respect of the fees of MS
Davenport, and the time taken in hearing on 6 October 1999 to deal
with it.
In the H~gh Court of New Zealand --
NO. l
Afidavtt of M~les Roqer W~slanq
5 February 2001
125. 1 bel~eved also that the costs of attendances (on 6 October 1999 and
2 November 1999) by MS Davenport upon Mr lnglis (Stylianou), the ! :
origlnal complainant agalnst me, after the origlnal charge was,' 1
29
126. 1 believed also that the costs of amending the CAC's original charge
against me, as well as the hearing and legal assessment by Mr.
Asher, of the amended charge should also not have been included
in the costs awarded against me.
127. My appeal against the costs award was dismissed by Judge
Cadenhead, in a reserved decision dated 27 April 1999 (a true copy
of which is annexed hereto and marked "MRW 74").
128. 1 did not exercise my right of appeal to the High Court against the
decision of the District Court, as I came to consider that the errors in
the actions of the Tribunal rendered it more appropriate to seek
judicial review, but that that might be unnecessary if I was able to
recommence practicing.
In the H~gh Court of New Zealand
No. 1
Affidav~t of Mlles Roqer W~slanq
' 5 February 2001
MATTERS RELATING TO THE PRACTISING CERTIFICATE
129. In order to resume working in medical practice, on 26 August 1999
I applied, on the prescribed form with the required fee enclosed, to
the Council for a practising certificate for the then current year due to
end 31 March 2000.
130. Notwithstanding that I had been charged by the CAC with practising
without a certificate, the hearing of which charge was then pending,
I expected that my application would be processed and decided
according to the relevant provisions (in my case section 54 of the
Medical Practitioners Act) on its merits.
131. At the time of my application for a practising certificate I was aware
that, under the provisions of section 57 of the Medical Practitioners
Act, the Council could issue an interim practising certificate able to
remain in force for up to four months and to be subject to such
conditions (as I understood could be applied to any practising
certificate) as specified by the Council. At the time of my application
for the certificate I was unaware of, and had no grounds for concern
for, what conditions the Medical Council might have in mind to apply
to it.
132. The Council acknowledged receipt of my application for the practising
certificate by letter dated 1 September 1999 (a true copy of which is
annexed hereto and marked "MRW 75") signed by Mr Girvan, on
behalf of the Registrar. In his letter, Mr Girvan stated that as I had not
held a practising certificate during the last three years, it was
statutorily required that my application be referred to the Council, and
that the Council would consider it at its next meeting, scheduled for
12-1 3 October 1999.
133. However, four weeks later I received a second letter from Mr Girvan
(again on behalf of the Registrar), dated 28 September 1999 (a true
copy of which is annexed hereto and marked "MRW 76") saying that
". . .Council is unable to process your application until the order of the
Medical Practitioner's Disciplinary Tribunal has been received"
and that 8
"The earliest opportunity for your application to be considered by
Council will therefore be at the December meeting on 8-9 December
and not 12- 13 October as previously advised"
134. Neither of the letters to me from Mr Girvan gave any indication of
whether or not my application for a practising certificate had been
referred by the Registrar to the Council as required, or of why the
Council could not consider or was unable to process my application
at its meeting of 12-1 3 October 1999; nor mentioned any meeting of
Council between 1 and 28 September 1999 at which deferral of
consideration of my application might have been decided.
135. However, by the time I received the second of Mr Girvan's letters (the
one dated 28 September 1999 (see "MRW 76") 1 had been informed
In the H~gh Court of New Zealand --
No. l
Afftdavtt of Mtles Roqer W~slanq
5 February 2001
by the Secretary of the Tribunal, by letter of 3 September 1999 (see
"MRW 21 ") that the date of 16 September 1999 originally set for the
hearing by the Tribunal of the CAC's charge against me (of practising
without a practising certificate) had been changed to 7 October1 959.
This deferral of the Council's consideration of my application for a
practising certificate appeared to me most ominous rather than
simply inconvenient when on 7 October 1999, during the first day of
the Tribunal hearing, the Tribunal inquired closely, as described in
paragraphs 60 to 62 hereof, into a whole range of my technical
procedures and points of my patient management. Believing that the
Tribunal was then at risk of pursuing a wrong path and of making a
perverse decision, I became deeply apprehensive of what the
Medical Council might be led to take into account in deciding my
practising certificate application.
136. Upon the adjournment of the Tribunal proceedings on 7 October until
l 1 November 1999, 1 was obliged to relegate my practising certificate
application (despite its great importance to me) to a lower priority
than answering the striking-off charge. For that reason, and also
because I was by then low on time, energy and emotional resources,
I regretfully forwent the steps I could have taken to seriously question
the Registrar'slCouncil's deferral of my application for my practising
certificate and to expedite its issue.
137. Following my receipt if the Tribunal's "Supplementary Decision--
Reasons" document, dated 10 December 1999 (see Exhibit "MRW
53") 1 faxed to the Registrar of the Medical Council three documents
in support of my August 1999 application for a practising certificate.
These documents were; a copy of my curriculum vitae (see Exhibit
"MRW 1 "), and affidavits from two specialist colleagues, Dr Stephen
Gilbert, plastic surgeon, and Dr Paul Wilson, anaesthetist (see
Exhibits "MRW 31" and "MRW 41"). Following those documents I
sent a faxed letter to Mr Girvan dated 7 February 2000 (a true copy
of which is annexed hereto and marked "MRW 77"). 1 had
understood from a telephone call I had made to Mr Girvan that day
that the Council might be able to consider my application at their
meeting of 8-9 February 2000.
In the H ~ g h Court of New Zealand
NO. 1
Affidav~t of M~ les Roqer Wtslanq
5 February 2001
3 L
138. On 6 March 2000 1 received a letter dated 2 March 2000 ( annexed
hereto in true copy and marked "MRW 78) from Mr Girvan, informing
me that at its meeting of 8-9 February the Council had considered my
application and proposed to issue a practising certificate to which the
following conditions would be applied;
1 . That I restrict my independent practice to hair transplants.
2. That I nominate a general overseer who would also agree to
be my mentor.
3. That, on my returning to practice, I would require assistance
to set up good systems to ensure that l satisfy statutory
requirements.
The said letter also informed me of my right to make, under
S.52(3)(c) of the Act, to make submissions either personally, or by
representative, to the Council on its decision to impose the conditions
on my practising certificate, and that the next meeting of the Council
would be held on 12-13 April 2000. The letter had as an enclosure a
reproduction of S 54 of the Act (" Decisions of Council as to
Practising Certificates").
139. Mr Girvan's letter of 2 March 2000 also informed me that if by 24
March 2000 the Council had not received submissions from me on
the conditions proposed, the Council would proceed to make its order
effective from 13 April 2000, and asked at the same time that I
ensure that my "nominated general overseer" signed that application
(sent under separate cover).
140. At the time of receiving Mr Girvan's letter I had not nominated a
general overseer, and in fact had not sought one.
141. By letter of 29 March 2000 (a true copy of which is annexed hereto
and marked "MRW 79") 1 made submissions to the Council on the
conditions it had proposed for my practising certificate.
In the Htgh Courl of New Zealand
No. l
Affidavtt of M~les Roqer Wlslanq
5 February 2001
4"
My submissions were under the headings of
1. General Oversight
2. Logistics
3. Mentor
4. Disclosure of Concerns
5. Assistance with Systems
6. Scope of Practising Certificate
In summary, my submissions opposed the requirement for a general
overseer andtor mentor; any need for, and the practicality of, my
obtaining assistance with the setting up of systems to ensure that I
satisfy the multifarious statutory requirements listed; and the
effectiveness of any such system. I also requested that the scope of
my practising certificate be extended to accommodate my teaching
and research activities.
In the H~gh Court of New Zealand
-
No. l
Affidav~t of M~les Roqer Wlslanq
5 February 2001
142. By fax of 30 March 2000 (a true copy of which is annexed hereto and
marked "MRW 80") 1 sent to the Council a copy of my letter of the 29
March 2000 correcting a few dating and typographic errors in the
latter.
143. By fax letter of 31 March 2000 (a true copy of which is annexed
hereto and marked "MRW 81"), 1 asked the Registrar, under
S.52(2)(a) of the Act, to provide me as soon as possible with the
substance of the grounds and copies of the information on which the
Council had relied upon in its proposing to impose conditions on my
practising certificate.
144. As a reply to my letter of 31 March, MS Jane Lui, Registration
Manager of the Council, sent me a handwritten fax dated 31 March
2000 (a true copy of which is annexed hereto and marked "MRW 82)
which appeared to say:
"Re: Your faxes received yesterday.
l confirm we have received your corrected version of your letter, +
have disposed of the original copy. As we need to give you
clarification of the situation re: Council's proposal to place conditions
h&
on your practising certificate, it would be good to speak to you first &
then c o n h the information in writing. We don't have time availaljle
to complete this process now as Council's agenda is going to he
despatched on Monday 3 April. 1 will call you on Monday and
explain/discuss your situation. Regards Jane. "
I did not reply directly to this fax of MS Lui, but wrote to Mr Girvan on
31 March 2000 (a true copy of which is annexed hereto and marked
"MRW 83") to say that the explanationldiscussion suggested by MS
Lui was not what was needed, and to ask that the previously
requested substance of the grounds and documents be provided to
me, and that my submissions on the proposed conditions be sent to
the Council members.
145. On 6 April 2000 1 received from the Medical Council a letter dated 4
April 2000 (a true copy of which is annexed hereto and marked
"MRW 84") which dealt with my submissions in an itemised manner
and ended by enclosing copies of the documents that the Council
said it had relied upon in making its decision to impose the said
conditions.
146. To me at that time, the most significant part of MS Lui's letter of 6
April 2000 was its description of the Council's belief concerning the
functions of the general overseer which it had been decided I would
require. Those functions included assistance to help me
"set up a good administration system to ensure that (I) satisfy all
statutory requirements . . . including . . . that (I) meet (my) obligations
contained in other enactments referring to registered medical
practitioners. "
Some 75 of those enactments are listed in Appendix 2 on page 1F3.
of the Medical Council's publication, "Medical Practice in New
Zealand", a true copy of which page is annexed hereto and marked
"MRW 85". At paragraph 5. on its page 2, the letter, without referring
to patient safety, described the general overseer as someone whom
the Council intended only as collegial support to set up appropriate
administration systems for, the letter said, "(my) own protection and
peace of mind."
In the H ~ g h Courl of New Zealand
No. 1
Affidav~t of Mlles Roqer W~slanq
5 February 2001
147. The said letter of 6 April 2000 also stated, at paragraph 4. on its page
2, that at the time of my application for an annual practising
certificate, Council had no concerns about my clinical and technical
expertise, treatment indications or patient management; and that no
information had been withheld frnv me.
148. 1 replied to the Council's said letter of 6 April 2000 with a fax letter
dated 10 April 2000 (a true copy of which is annexed hereto and
marked "MRW 86'7, in which I accepted the offer in the Council's
letter to make further submissions, but pointed out that because of
the complexity of the issues now and a very tight time constraint
placed by the Council on my making more submissions, I would be
unable to address the issues in time; and stated that I wished the
consideration of my application to be deferred until a later (in the
event, the August) meeting of the Council.
149. My letter of l 0 April 2000 was replied to by Mr Girvan who in his letter
of 13 April 2000 ( annexed hereto in true copy and marked "MRW
87") confirmed that my application for a practising certificate had not
been considered by the Council at its April meeting. However Mr
Girvan's letter also informed me
". . .that the proposed condition of oversight is to be a condition on
your practising certificate pursuant to section 54(b) of the Act
(enclosed). As you have indicated, you are exempt from general
oversight as a condition on your registration until July 2001. Thjs
does not, however, prevent Council from proposing such a cdndition
(or any other condition deemed appropriate) on your practisir~g
certificate during the interim period. The reasons behind such a
proposal are outlined in Jane Lui's letter of 4 April 2000.
150. By faxed letter to the Registrar dated 27 July 2000 (a true copy of
which is annexed hereto and marked "MRW 88") 1 requested that
my submissions of 29 March 2000, referred to in paragraph 141
hereof, be put before the Council at its meeting of 10 August 2000
when it was to consider whether to impose conditions on my
practising certificate for the current year. In that letter I said that at
In the H~gh Coutt of New Zealand .----
No. l
Aff~dav~t of M~les Roqer W~slanq
5 February 2001
that meeting I would be represented by legal counsel, Dr G.D.S.
Taylor, who would make additional submissions on the imposing of
the conditions. I stated I would endeavour to attend the meeting
personally to answer any questions and supply any additional
information necessary for members of the Council to reach their
decision.
151. Accompanied by my legal counsel, Dr Taylor, who had prepared
written submissions (a true copy of which is annexed hereto and
marked "MRW 89") addressing legal points, I attended the appointed
afternoon session of the 10 August 2000 meeting of the Council in
Wellington.
152. The order of the meeting was, introductions by Council President, Dr
Baird, followed by oral presentation by Dr Taylor of his submissions
on which he took questions from the Council; followed by my
answering questions put to me by Council members and the
Assistant Registrar who was also in attendance.
153. The questions put to me ranged widely over aspects of my past and
intended future practice, teaching and research, and included inquiry
of me as to whether I had found a colleague who would act as
overseer of my practice; to which I replied that I had not. It was then
suggested by a Council member that I approach Dr Stephen Gilbert,
a plastic surgical working associate of mine and deponent of the
affidavit referred to in paragraph 62 hereof, to act as overseer of my
practising.
154. The President asked me if I currently had professional rooms and on
what date I intended to resume my surgical practice. I answered that
neither had been settled as I was waiting until I knew what conditions
my issued practising certificate would be subject to before I resumed
practice; because, as I explained to the President, I doubted whether
the conditions foreshadowed were workable. The President
responded by saying that during this meeting I had listened to none
of the questions asked of me.
In the H~gh Court of New Zealand
- --p-
No. i
Affidav~t of M~les Roqer W~slanq
5 February 2001
155. The President concluded by saying that the Council was reserving its
decision on the submissions made by Dr Taylor and myself.
156 By letter of 20 September 2000 ( a true copy of which is annexed
hereto and marked "MRW 90") signed by the Acting Registrar, I was
informed of the Council's decision in respect of the conditions which
would apply to my practising certificate, and the reasons for that
decision; and further, that the Registrar had decided that a practising
certificate would not be issued to me until I had paid the costs
ordered against me by the Tribunal; being the costs referred to In
paragraphs 107, 117 and 121 hereof.
157. The conditions the Council had decided would apply to my practising
certificate were that I restrict my independent practice to hair
transplantation and the teaching of anatomy and bio-surgical
research; and that I nominate a general overseer to would agree to
be my mentor.
158. The reasons given by the Council for the imposing of the conditions
on my practising certificate were set out in paragraphs 4.1 to 4.1 1 of
its said letter of 20 September 2000; and included that:
(a) My attitude and lack of judgment evidenced a deficiency of
competence as a medical practitioner; (at 4.6).
(b) I had demonstrated to the Council a lack of overall ability to
organise my affairs; this reason citing failure to notify changes of
address, failure to make arrangements to pay the costs awarded
against me by the Tribunal, and advising the President that my place
of future practising was yet to be determined; (at 4.7).
(c) My knowledge and skills of procedures and communication
and my attitudes and judgment is (sic) not of an acceptable level; (at
4.8).
159. 1 confirm that at no time have I, for those or any other reasons, been
requested or required by the Council to have my competence or of
my fitness to practice medicine reviewed under the provisions of
In the H~gh Court of New Zealand
No. 1
Atfidavlt of Mlles Roqer Wlslanq
5 February 2001
i U
Parts V and VII of the Act, or its predecessor's equivalent provisions
SWORN at 1 M
this 5 day of February 2001 ) )
In the H~gh Court of New Zealand --
No. l
Afidav~t of M~les Roger W~slanq
5 February 2001
In the High Court of New Zealand
-------------I-- 0 No. 2
Amended Statement of Claim IN THE HIGH COURT OF NEW ZEALAND of Miles Roger Wislang
WELLINGTON REGISTRY 28 May 2001
CP No. 21 9/00
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF the Medical Practitioners Act 1995
BETWEEN MILES ROGER WISLANG, of Whangaparaoa, registered medical practitioner
Plaintiff
AND MEDICAL COUNCIL OF NEW ZEALAND, at Wellington
First Defendant
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL, at Wellington
Second Defendant
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND, at Wellington
Third Defendant
AMENDED STATEMENT OF CLAIM 28 MAY 2001
HANNING CONNOR Solicitors
(P J Connor) P 0 Box 10376 DX SP 23544
Phone: 499 3280 Fax: 499 3308 WELLINGTON
email hanning.connor@xtra.co.nz
Counsel G D S TAYLOR
Barrister P 0 Box 5294 DX SP22510
Phone: 495 3451 Fax 495 3458 email: graham.taylor@johnsaImond.co.nz
s0045039asc
AMENDED STATEMENT OF CLAIM
DAY THE DAY OF MAY 2001
The Plaintiff, by his solicitor, says that
THE PARTIES
1 He (hereafter called "Dr Wislang") is a registered medical practitioner, of
Whangaparaoa, but does not at present hold a practising certificate and is
currently unemployed.
2 The First Defendant (hereafter called "the Council") is the Council established
under section 122 of the Medical Practitioners Act 1995 (hereafter called 'the
Act"), and has its office at Wellington.
3 The Second Defendant (hereafter called "the Tribunal") is the tribunal
established under section 96 of the Act, and has its office at Wellington.
4 The Third Defendant (hereafter called "the CAC") is an ad hoc committee of
the First Defendant, appointed pursuant to section 88 of the Act to investigate
a complaint against the Plaintiff by one Andrew Stylianou.
THE BACKGROUND
5 Dr Wislang graduated Bachelor of Medicine and Bachelor of Surgery of the
University of Otago in 1967 and practised medicine from then until 1998,
developing special expertise in the area of hair transplants, and also
undertaking research and tertiary teaching.
6 Hair transplant is not a recognised branch of medicine for which vocational
registration is available under section 22 of the Act.
In the H ~ g h Court of New Zealand
No. 2
Amended Statement of Clam of M~les Roaer Wtslana
28 May 2001
7 On or about August 1994 Dr Wislang returned to New Zealand after a period
of research overseas and recommenced practice in New Zealand, during
which his then current practising certificate expired. He did not at that time
obtain an annual practising certificate as required by section 67 of the
Medical Practitioners Act 1968 (repealed from 1 July 1996).
8 Dr Wislang continued to practice in his area of special expertise until late
April 1998 but did not obtain an annual practising certificate under either
section 54 of the Act or section 67 of its predecessor.
9 In or about April 1997, Andrew Stylianou also known as Andrew lnglis
(hereafter called "Mr Inglis"), a patient of Dr Wislang during the period
referred to in paragraphs 7 and 8 hereof, made a complaint to the Health and In the tilgh court of New Zealand
Disability Commissioner about Dr Wislang's treatment of his condition. ---P-
No. 2
Amended Staternenl of Clam of M~les
/ P 10 By letter dated 28 November 1997, the Health and Disability Commissioner Rooer W~slana
28 May 2001 decided to take no action on Mr Inglis' complaint.
11 In or about September 1998 the Council received a complaint from Mr lnglis
(a) about Dr Wislang's treatment of his condition, and
(b) that Dr Wislang treated him without holding a current practising certificate,
which complaint it notified to Dr Wislang by letter dated 16 September 1998.
12 By document dated 13 May 1999 headed "Disciplinary Charge", the CAC,
determined in accordance with section 92(l)(d) of the Act that Mr Inglis'
complaint should be considered by the Tribunal, and charged Dr Wislang
under section 93(l)(b) of the Act that:
"(a) In the course of performing hair transplantations upon Andrew lnglis (also known as Andrew Stylianou) during 1996 and 1997 practiced (sic) medicine without holding a current practising certificate.
"(b) Andlor he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate.
"Being professional misconduct."
No charge arising out of complaint (a) referred to in paragraph 11 hereof has
ever been made.
13 By notice dated 21 May 1999 headed "Notice of Intention to Bring Disciplinary
Proceedings before the Medical Practitioners Disciplinary Tribunal", signed
by its Chair, the Tribunal gave notice to Dr Wislang that he was to be
charged in terms of the charge quoted in the preceding paragraph
(paragraph 12) hereof.
14 By letter dated l l June 1999, Dr Wislang advised the Tribunal that he did In the HI^^ Court of New Zealand
"formally admit the charge as made out against me". He added that this ----- No. 2
would make it unnecessary for him to be heard in person or by representative Amended Statement of Cla~m of Mlles
at the determinative stage of the proceedings, but he "would like with leave Roaer W~slanq
28 May 2001
of the Tribunal to make written, or in the alternative oral, submissions to the
Tribunal as to penalty if and when this is appropriate."
15 By letter dated 3 August 1999, the Tribunal advised Dr Wislang that "the
Complaints Assessment Committee has accepted your plea of guilty at the
level of professional misconduct." The letter then advised Dr Wislang of the
hearing date, place and time. The letter then continued,
"I note from your letter to the Tribunal of 11 June that you do not wish to make submissions to the Tribunal in the determinative stage of the hearing, but seek leave from the Tribunal to make either oral or written submissions as to penalty. The Tribunal has agreed to this. Accordingly you should attend the hearing on Thursday 16 September 1999 in order to make these submissions prior to the Tribunal's consideration of penalty.
"The Tribunal has received from MS Davenport, counsel to the Complaints Assessment Committee, a bundle of documents which sets out the background to this matter. For your information, I enclose a copy of this document. The Tribunal will take into consideration the information held in this document, together with any submissions made to it by MS Davenport on the day of hearing."
16 By document dated 30 August 1999 headed "Amended Charge" and signed
by MS Davenport, conveyed to Dr Wislang under letter dated 3 September
1999, the Complaints Assessment Committee deleted the final words "being
professional misconduct" from the charge already notified and substituted
"These particulars amount to either professional misconduct andlor that Dr Wislang practised medicine outside the extent permitted by, or not in accordance with the conditions of, (sic) his registration or any practising certificate held by him."
The covering letter advised that the hearing date had been changed to 7
October 1999.
17 By letter dated 6 October 1999, sent to Dr Wislang by facsimile late that
morning, the Tribunal provided Dr Wislang with an affidavit of a Dr Knudsen In the H~gh Courl
relating in part to the quality of Dr Wislang's treatment of Mr Inglis, tendered of New Zealand ---- to the Tribunal by the Complaints Assessment Committee. No. 2
Amended Statement of Clalm of M~les Roaer Wtslana
18 The same day, Dr Wislang sent two facsimiles to the Tribunal, one of which 28 May 2001
objected to the late tendering of the affidavit, asking whether the affidavit was
to be taken into account, and, if it was, asking for an adjournment
19 The hearing commenced the next day, 7 October 1999 at 10.52 a.m. and,
following a lunch adjournment, concluded at 2.42 p.m., with M Davenport
appearing for the Complaints Assessment Committee and Dr Wislang
appearing in person supported by a Dr Conyngham.
20 At the hearing, the Tribunal received submissions from Dr Wislang on
admissibility of the affidavit referred to in paragraph 17 hereof and ruled that
it not be admitted.
21 At the hearing, Dr Wislang gave evidence (at pages 12-13 of the transcript)
as to how it came about that he did not renew his practising certificate in
1994.
(a) He was uncertain whether or not to remain in New Zealand.
(b) He was more engaged in research at the time.
(c) He had no administrative assistance.
(d) His bookkeeping was "hopeless"
22 At the hearing (transcript pp 18-19), Dr Wislang stated the reasons for not
obtaining a practising certificate in later years.
(a) Neglect.
(b) He did not appreciate why annual practising certificates were
necessary.
(c) He was busy in research and counselling patients with problems to
the extent that he was part time in terms of strict functioning as a
medical practitioner.
23 At the hearing (transcript pages 16-17), Dr Wislang acknowledged that he
/o sometimes prescribed drugs, or obtained a supply for himself (which he
dispensed), or collected a drug he had prescribed for a patient himself, and
that he used his medical registration number for this purpose when required.
24 At the conclusion of the hearing, the Chair of the Tribunal said that
(a) The hearing would be adjourned to allow 14 days for Dr Wislang to
provide further material (upon the ground that he had not realised that
the amendment to the charge enabled an order to be made striking
him off the register of medical practitioners) with a further 7 days for
MS Davenport to comment, and
(b) Dr Wislang's registration as a medical practitioner would be
suspended under section 104(l)(a) of the Act.
25 Under cover of facsimile letter dated 11 October 1999, Dr Wislang lodged
with the Tribunal a memorandum stating that
(a) He had not pleaded guilty to the amended charge, and were the
Tribunal to hold him guilty of the amended charge, he formally denied
it.
In the H~gh Court of New Zealand
No. 2
Amended Statement of Clam of M~les Roaer Wlslana
28 May 2001
- . , ; 2 -.
(b) He subm~tted that the Complaints Assessment Comm~ttee had n p ~ I i d ; : ; -$ 9 ,
a '13 power to amend the charge because he had already pleaded guiltvpa: ;,b,;
to the charge laid and so the Complaints Assessment Committee was
functus officio, and in any event the amended charge was not one
that could ever have been made out.
(c) The amended charge should be struck out or withdrawn by the
Complaints Assessment Committee.
(d) If it were maintained, Dr Wislang reserved the right to be further
heard on the amended charge.
(e) The plea and request made earlier in the memorandum was without
prejudice to Dr Wislang's right to challenge the validity of the charge
(original and amended), the proceedings of the Complaints
Assessment Committee, and the interim suspension.
26 By facsimile letter dated 12 October 1999, Dr Wislang asked the Tribunal to
hold a telephone conference so that certain jurisdictional and procedural
matters could be dealt with.
27 By facsimile letter dated 14 October 1999, the Tribunal refused the request
referred to in paragraph 26.
28 By facsimile letter dated 14 October 1999;Dr Wislang particularised his
request as being that the amendment to the charge could not have been \
made out because there were no conditions attached to any practising
certificate he had held, and that, as most of the time consumed at the
hearing of 7 October 1999 was directly or indirectly occasioned by the "mis-
charge", it was in no one's interest that the Tribunal should continue to
deliberate on penalty under any further misdirection.
29 The suspension order referred to in paragraph 24(b) hereof (identified as the
"First Reviewable Decisionn) was dated 13 October 1999 and was stated to
remain until the disciplinary proceedings had been determined.
In the H~gh Court of New Zealand -
No. 2
Amended Statement of Cla~m of M~les Roqer W~slana
28 May 2001
30 Dr Wislang applied to have the suspension order revoked by facsimile letter
dated 5 November 1999.
31 By facsimile letter dated 15 October 1999, Dr Wislang advised the Tribunal
that the grounds of the suspension order, which he had received by facsimile
at 3 p.m. on 14 October 1999, were"gravelyn flawed as, inter alia, one reason
was that Dr Wislang had pleaded guilty to the amended charge. He
reiterated his request for a telephone conference.
32 By facsimile letter dated 20 October 1999, the Tribunal acknowledged Dr
Wislang's letter of 14 October 1999 referred to in paragraph 28 hereof,
advised him of MS Davenport's reasoning, and said that the matter would be
considered when the Tribunal reconvened In the H~gh Court of New Zealand
No. 2
/o 33 By facsimile letter dated 22 October 1999, Dr Wislang submitted to the Amended Slatement of Cla~m of Miles
Tribunal that MS Davenport's submission was in "manifest simple and serious Roqer W~sianq
28 May 2001 error" and asked that the point be referred to the Tribunal's legal assessor for
his opinion.
34 By minute dated 4 November 1999, the Tribunal ruled that the charge as
amended would be further amended when the Tribunal reconvened on 11
November 1999 by deleting the allegation that Dr Wislang had breached
section 109(l)(f) of the Act, with the result that the original charge would be
reinstated. The minute stated that section 109(l)(f) did not apply as:
(i) Sections 9 and 10 of the Act do not impose conditions on registration
in terms of section 109(l)(f).
(ii) "Conditions" in section 109(l)(f) referred to actual conditions imposed
on a practitioner's registration or practising certificate.
(iii) Breach of such conditions might well attract the highest penalty.
(iv) There was a distinction between such breaches and those of section
109(2)(b) which may not involve the same element of deliberate
breach or flagrant disregard.
35 The minute of 4 November 1999 also stated that, "Assuming the plea of guilty
is maintained", then the Tribunal's then intention was that the hearing would
be convened only for the purpose of receiving submissions as to penalty.
36 Dr Wislang , by facsimile letter dated 5 November 1999, further disputed the
framing of the original charge and expressed the view that since the interim
suspension had been made on the basis of the amended charge, which had
been shown to be unsustainable, the order should have been revoked
spontaneously.
37 The Tribunal replied by three facsimile letters dated 8 and 9 (two letters)
November 1999, initially stating that the matters raised would be considered
at the commencement of the hearing on 11 November, but ultimately
responding in substance to the letter of 5 November 1999.
/o 38 The hearing of l l November commenced at 9.00 a.m. and concluded after
a lunch break with the Tribunal's decision being given at 3.00 p.m., with Mr
Asher QC appearing as legal adviser to the Tribunal, MS Davenport for the
Complaints Assessment Committee, and Dr Wislang in person, accompanied
by a Mr Thomas as lay supporter.
39 At the hearing of 11 November 1999:
(a) MS Davenport relied upon "a submission" from Mr Inglis, namely, a
letter including allegations of fact, which MS Davenport tendered.
(b) MS Davenport submitted that the costs of the prosecution had been
"unduly delayed and extended by the avalanche of paper and
requests generated by Dr Wislang.
(c) MS Davenport submitted that "medical practitioner" in the Act means
someone who is both registered and has a practising certificate and
for that reason the dispensing or prescribing drugs under the
Medicines Act 1981 could not be done without a practising certificate.
In the H~gh Court of New Zealand
NO. 2
Amended Statement of Clam of M~les Roaer Wlslana
28 May 2001
(d) Dr Wislang challenged the use of Mr Inglis' letter, and, while admitting
the word "avalanche", submitted that the correspondence was made
necessary by the amended charge.
(e) Dr Wislang, while admitting that he did prescribe drugs in general
terms, challenged the submission on that because it had not been
shown that he had prescribed drugs on any particular occasion while
not holding a practising certificate.
40 The Tribunal gave its decision (identified as "the Second Reviewable
Decision") on 11 November that Dr Wislang was guilty of professional
misconduct under section 102(2)(b) of the Act, and ordered that his
registration be suspended for two months, that he be censured, pay a fine of
$8,500, and pay 35% of the costs coming within section I lO(l)(f)(ii)-(iv).
/o 41 Dr Wislang appealed the costs order in the Second Reviewable Decision to
the District Court pursuant to section 116 of the Act upon the grounds that:
In the H~gh Court of New Zealand
No. 2
Amended Statement of Claim of Miles Roger Wtslang
28 May 2001
(a) It included costs associated with the amended charge, which was
invalid for a number of reasons.
(b) It was based on the wrong assumption that because he was not
legally represented, he had not sought and received legal advice.
(c) It improperly punished him for not being legally represented at the
hearing.
42 The District Court by a decision dated 27 April 2000 dismissed the appeal,
holding that the Tribunal had carefully considered all the issues concerning
costs raised by Dr Wislang, and that the award was appropriate and took into
account the matters raised.
43 Dr Wislang did not appeal the District Court decision to the High Court
pursuant to section 121 of the Act.
44 Dr Wislang had, on 26 August 1999 applied for a practising certificate for the
year ending 31 March 2000.
45 By letter dated 28 September 1999, the Council advised Dr Wislang that it
could not process his application until the Tribunal had made its decision, and
by letter dated 24 November 1999, the Council advised that it had received
the Tribunal's interim decision, which included the two month suspension of
registration.
By facsimile dated 28 September 1999 the Council invited Dr Wislang to
submit any further material in support of his application, which he did on 7
February 2000.
By letter dated 7 February 2000, Dr Wislang submitted to the Council further
material in support of his application for a practising certificate, namely, his
curriculum vitae and affidavits by Doctors Gilbert and Wilson dated 21 and In the tllgh court of New Zealand
20 October 1999 respectively. - No. 2
Amended Statement of Clam of Mlles
By letter dated 2 March 2000, the Council advised Dr Wislang that it was Roqer W~slana
28 May 2001 contemplating imposing as a condition on any practising certificate it issued
to Dr Wislang that he nominate a general overseer of his practice to help set
up systems of good administration and to ensure that Dr Wislang satisfied all
statutory requirements related to registered medical practitioners.
Following submissions by Dr Wislang dated 30 March 2000 and a request for
a statement of grounds faxed the following day, the Council by letter dated
4 April 2000 stated its grounds, including a list of the documents it relied on
(the Tribunal decision dated 10 December 1999, information in Dr Wislang's
facsimile of 7 February 2000, and the two affidavits Dr Wislang had
submitted that day. The letter affirmed that the Council had "no concerns
about your clinical or technical expertise, treatment indications or patient
management", and invited a new application for the current year.
Dr Wislang made further representations on 10 April 2000
Through April and into May 2000 Dr Wislang was engaged in obtaining
documents from the Tribunal concerning the legal expenses included in the
award of costs, resulting in acceptance by the Tribunal that an amount had
been included incorrectly. The Tribunal issued an amended decision dated
18 May 2000 reducing the amount of costs awarded by 35O/0 of $7,831.02.
Dr Wislang made an application dated 17 April 2000, faxed to the Council on
27 July 2000, for the current 2000-2001 year
53 The 2000-2001 application was considered at a meeting of the Council on 10
August 2000 at which Dr Wislang was permitted to appear with counsel,
make submissions and answer questions for Council members.
54 Dr Wislang's submissions were, as to legal aspects, that any conditions had
to be limited to the year in respect of which the practising certificate was
sought, and to the three failings found by the Tribunal in its decision dated 10
December 1999, namely:
(a) Administrative organisational failure in not obtaining the practising
certificates.
(b) Unawareness of the implications for patients under the Accident
Rehabilitation and Compensation Insurance Act 1992 of his not
having a current practising certificate.
(c) Unawareness of the representation at law that he held a practising
certificate when dealing with patients and pharmacists.
The submissions did not accept that the Tribunal finding that Dr Wislang
lacked insight could be relied on so that it was irrelevant to the imposition of
conditions. On the merits, the submissions made a proposal addressing the
failings but not involving conditions on Dr Wislang's practising certificate.
55 By letter dated 20 September 2000, the Council made its decision'(identified
20 as "the Third Reviewable Decision") imposing conditions on a practising
certificate restricting Dr Wislang's "independent practice" to hair transplants
and the teaching of anatomy and bio-surgical research, and that he
"nominate a general overseer who will also agree to be your mentor." The
decision added, "Council views mentoring as the provision of collegial support
and guidance which is seen as assisting a doctor in regaining or maintaining
safe practice."
FIRST CAUSE OF ACTION AS TO FIRST REVIEWABLE DECISION
In the High Court of New Zealand
No. 2
Amended Statement of Clam of M~les Roqer W~slana
28 May 2001
For the first reviewable error, the Plaintiff repeats the allegations contained in
paragraphs 1 to 29 hereof and says that:
56 The First Reviewable Decision (the order of interim suspension of Dr
Wislang's registration) dated 13 October 1999 was made for the reasons that
Dr Wislang had admitted in evidence that:
(i) He had not held a practising certificate since 1994.
(ii) While without a practising certificate, he had carried on a medical
practice including advertising, treating patients, prescribing and
administering drugs, and charging fees.
(iii) He had obtained medicines and drugs from pharmacists and drug In the HI^^ C O U ~
of New Zealand
suppliers in the knowledge that they thought he had a practising --p
No. 2
certificate, and otherwise were acting in the belief that he was legally Amended Statement of Clalm of M~les
entitled to obtain the drugs and medications. Rooer Wlslano
28 May 2001
Also, that when Dr Wislang pleaded guilty he was unaware that the charge
incorporated section 109(l)(f) of the Act, notwithstanding that he had notice
of the amendment, and he was unaware that he could be struck off. And that
"as a result of the evidence given by Dr Wislang, the Tribunal had
determined that Dr Wislang had demonstrated a lack of insight, judgment
and ability to organise his affairs such that it was necessary andlor desirable
having regard to the health or safety of members of the public" that Dr
Wislang's registration be suspended.
20 57 The First Reviewable Decision was an exercise of statutory power
58 The First Reviewable Decision contained the following reviewable errors of
law:
(a) It was based on the amended charge which was not and never could
have been a charge that could validly have been laid.
(b) It was based on the proposition that a medical practitioner who was
not legally represented before the Tribunal demonstrated a lack of
insight and judgment.
(c) It was based on the proposition that a medical practitioner who made
an error of statutory interpretation in respect of charges laid
demonstrated a lack of insight and judgment.
WHEREFORE the Plaintiff claims:
(a) A declaration that the First Reviewable Decision was invalid.
(b) The costs of and incidental to this proceeding.
SECOND CAUSE OF ACTION AS TO SECOND REVIEWABLE
DECISION
For the second reviewable error, the Plaintiff repeats the allegations contained in
paragraphs 1 to 43 hereof and says that:
59 The reasons for the Second Reviewable Decision (the ultimate decision of
the Tribunal) dated 10 December 1999 were in summary that:
(a) Had Dr Wislang made any "sensible and prudent attempt to obtain
advice" the costs resulting from adjournment of the 7 October 1999
hearing would have been avoided and that "all of these costs"
resulted "entirely" from his own conduct. (Decision paragraphs 3.1 0-
3.11.)
(b) Dr Wislang's failure to obtain a practising certificate and to make "any
adequate preparation" for the hearing resulted from an absence of
ability to organise his affairs properly. (Decision paragraph 3.1 1 .)
(c) "This lack of judgment" was displayed in other ways including failure
to give thought to the jeopardy in which he placed pharmacists and
drug companies dealing with him in the belief that he was a
"practitioner" within the terms of the Medicines Act 1986, the Misuse
of Drugs Act 1974, and the Act. (Decision paragraph 3.12.)
In the H~gh Court of New Zealand
No. 2
Amended Statement of C l a m of Mtles Roaer W~slanq
28 May 2001
(d) The reason for w~thdrawal (referred to in paragraph 34 hereof) of the
amended charge was that "in the circumstances of this case, i.e , in
the absence of any substantive complaint and thus any evidence '- - ,
beyond the anecdotal and often confusing evidence given . by DC : \
$1, 6 J
3 " , Wsang" the allegation should be withdrawn. (Dec~son paragraph! , , I
3 1 6 ) # ,
9 , ? '$ z
(e) The Act intended practising without a practising certificate to
constitute a serious offence, and here the period concerned was four
years and the potential consequences for others "not insignificant, so
that a period of suspension was "unavoidable", but that the objects of
a disciplinary sanction could in this case be met by a short period of
suspension. (Decision paragraphs 6.4-6.5 and 6.1 3-6.14.)
(f) Taking account of Dr Wislang's financial position, a fine of $8,500
was appropriate, and no conditions on his practising certificate would
be imposed as he would have to apply to the Council for a new
certificate and the Council had power to impose conditions on that
certificate. (Decision paragraphs 8.3 and 8.5.)
(g) As to an award of costs, the extra costs incurred as a result of the
amended charge should be taken into account, but also that
significant additional costs and the "positive deluge" of material he
generated following the 7 October hearing were incurred as a result
of Dr Wislang not organising himself for the 7 October hearing.
(Decision paragraph 9.3.)
(h) Guilt in professional misconduct cases generally attracts awards of
costs of 35-45% of the total costs (here $52,288.97), and taking that,
the fact that the hearing would have taken less than a day "had Dr
Wislang properly prepared and organised himself for the hearing of
the charge, even in its amended form", absence of a substantive
complaint in terms of clinical practice, and substantial costs incurred
by Dr Wislang, an award of 35% of the total costs should be made.
(Decision paragraphs 9.4-9.7 and 9.1 1 .)
60 The Second Reviewable Decision was an exercise of statutory power
61 The Second Reviewable Decision contained the following reviewable errors:
(a) The Tribunal erred in law in holding that a person who is not legally
represented before the Tribunal was imprudent and not sensible.
(b) The finding that Dr Wislang failed to make "any adequate
preparation" for the hearing was unsupported by any evidence andlor
In the H~gh Court of New Zealand
No. 2
Amended Statement of Cla~m of M~les Roger Wlslana
28 May 2001
was invalidated by drawing on Dr Wislang's decision not to be legally
represented.
(c) The Tribunal erred in holding that Dr Wislang was not a "medical
practitioner" in terms of the Medicines Act 1981, the Misuse of Drugs
Act 1974, and the Act.
(d) The Tribunal erred in misdirecting itself as to its own reasons for re-
amending the charge against Dr Wislang.
(e) The award of costs was based on errors of law in that: In the H~gh Court of New Zealand
NO. 2
(i) It failed to remove from calculations the time and effort by all Amended Statement of Cla~m of Mlles
relevant parties (the Tribunal ad the Complaints Assessment Roaer Wtslanq
28 May 2001
Committee) in respect of the amended charge on which no
finding of guilt was made.
(ii) The finding of a "deluge" of material between the hearings
was not supported by any evidence.
(iii) The award was based in part on the erroneous conclusion
that a medical practitioner who is not legally represented had
not given "any adequate preparation" for a hearing.
62 In consequence of the errors identified in paragraph 61 hereof, the Second
Reviewable Decision was invalid in the conclusions in respect of which there
were errors and in all orders except censure.
WHEREFORE the Plaintiff claims:
(a) A declaration that the conclusions in all paragraphs to which
subparagraphs 61(a)-(e) hereof relate are invalid.
(b) Orders quashing the paragraphs of the decision to which the errors
in subparagraphs 61(a)-(e) hereof relate, and quashing paragraphs
10.1.1, 10.1.3 and 10.1.4 of the Second Reviewable Decision.
(c) The costs of and incidental to this proceedtng.
THIRD CAUSE OF ACTION AS TO THIRD REVIEWABLE DECISION
For the third reviewable error, the Plaintiff repeats the allegations contained in
paragraphs 1 to 55 hereof and says that:
63 The Third Reviewable Decision (the decision of the Council as to conditions
on Dr Wislang's annual practising certificate) dated 20 September 2000 was
for the reasons in summary that:
(a) A medical practitioner's "competence" in terms of section 54(1) of the In the H~gh Courl of New Zealand -
Act includes "not only whether a doctor is practising safely and has NO. 2
an acceptable level of knowledge and skills (including procedures and Amended of Cla~rn Statement of M~ies
Roaer W~slanq chmunication) but also the doctor's attitudes and judgement".
28 May 2001
(b) Dr Wislang's "lack of insight and lack of awareness" of potential harm
to the public of practising without a practising certificate was of
serious concern (referring to the Tribunal decision).
(c) Dr Wislang's "attitude and lack of judgement", particularly not giving
thought to the jeopardy in which he placed persons with whom he had
dealings while practising without a practising certificate "evidences a
deficiency in your competence as a medical practitioner" (referring to
the Tribunal decision).
\
(d) Dr Wislang had demonstrated a lack of overall ability to organise his
affairs in failing "on a number of occasions" to notify the Council of his
change of address, failing to arrange for payment of costs awarded
by the Tribunal, and answering a question at the hearing before the
Council of where he intended to work from, that that was yet to be
determined.
(e) Dr Wislang's knowledge and skills of procedures and communication
and his attitudes and judgement were not of an acceptable level, and
could be addressed only by imposing a condition on his practising
certificate.
The Council stated that it based its decision on the Tribunal decision dated
10 December 1999, Dr Wislang's letters of 7 February and 27 July 2000 and,
his written submission dated 30 March 2000, his curriculum vitae, his
application for a practising certificate for the current year, affidavits of Drs
Wilson and Gilbert, the submissions of Dr Wislang's counsel and his answers
to questions at the hearing before the Council.
64 The Third Reviewable Decision was an exercise of statutory power.
65 The Third Reviewable Decision contained the following reviewable errors:
(a) It erred in law in its understanding of "competence" for purposes of
section 54(1) of the Act.
(b) Its reasons (b) and (c) were materially based on the Tribunal's
/O decision which was itself invalid.
In the H~gh Court of New Zealand
No. 2
Amended Statement of Cia~m of M~les Rooer W~slana
28 May 2001
(c) It erred in the reasons given to support its reason (d) in that
(i) The finding on notification of changes of address was not
based on the material it said it relied on in making its decision.
(ii The finding on notification of changes of address was in
mistake of fact in that the Plaintiff notified his change of
address on 26 April 1993 (which change was noted in his
personal file) and remained at that address thereafter.
(iii) The finding about payment of costs was an adverse finding,
no notice of the likelihood of making which had been given to
Dr Wislang, so resulting in breach of natural justicelfairness.
(iv) The finding that Dr Wislang's answer to the question about
place of practice showed lack of ability to organise his affairs
was one that no reasonable Council properly instructed could
have reached.
66. As a consequence of the errors identified in paragraph 65 hereof, the
condition on any practising certificate issued to Dr Wislang to which he had
not consented, namely, the second condition, was invalid.
WHEREFORE the Plaintiff claims.
(a) An order quashing the second condition imposed on any practising
certificate to be issued to Dr Wislang.
(b) The costs of and incidental to this proceeding.
THIS Statement of Claim is filed by PETER JAMES CONNOR, Solicitor for the
Plaintiff, whose address for service is at the offices of Hanning Connor, level 14, 70
The Terrace, Wellington.
Documents for service on the abovenamed Defendant and Counterclaim Plaintiff
may be left at that address for service or may be -
(a) Posted to the solicitor at PO Box 10376, Wellington, or
(b) Left with the solicitor at a Document Exchange for direction to DX Box
SP 23544, Wellington; or
(c) Transmitted to the solicitor by facsimile to Facsimile No 04-499 3308;
or
(d) E-mailed to the solicitor at hanning.connor@xtra.co.nz.
In the High Coutt of New Zealand
No. 2
Amended Statement of Cla~m of M~les Rooer Wtslano
28 May 2001
In the High Court of New Zealand
In the High Court of New Zealand
----------m--- 0 No. 3
Affidavit of Tania Mureen Turfrey for Medical Council of
New Zealand 16 May 2001
Wellington Registry CP No. 219100
Under the the Judicature Amendment Act 1972
In the Matter of the Medical Practitioners Act 1995
Between Miles Roger Wislang
Plaintiff
And
And
And
Medical Council of New Zealand
First Defendant
Medical Practitioners Disciplinary Tribunal
Second Defendant
The Complaints Assessment Committee of the Medical Council of New Zealand
Third Defendant
Affidavit of Tania Mureen Turfrey
Sworn 4 P ' ~ a y 2001 I
01 107018l GES
89 The Terrace PO Box 10246 DX SP26517 Wellington Telephone (04) 472 7877 Facsimile (04) 472-2291
Solicitor Acting: M F McClelland/N J Russell
I , Tania Mureen Turfrey of Wellington, Assistant Registrar, swear:
I am the Assistant Registrar of the Medical Council of New Zealand, the first
defendant in this proceeding ("the Council7'). I am authorised to make this
affidavit on behalf of the Council. As the Council's Assistant Registrar, I
am familiar with the history of dealings between the Council and the plaintiff
in this proceeding, Dr Miles Wislang. I confirm that I have read the affidavit
sworn by Dr Wislang on 5 February. I am making this affidavit in order to
address issues raised by Dr Wislang, and references to paragraph numbers
refer to that affidavit.
2 [Paragraphs 129-1371 1 confirm that Dr Wislang applied for a new Annual
Practising Certificate ("APC") for the practising year 1999-2000 in August
1999, and that Council acknowledged this by letter dated 1 September 1999
(exhibit MRW 75 attached to Dr Wislang's affidavit). Dr Wislang's
application was referred to the full Council as required under S 52(l)(d) of
the Medical Practitioners Act 1995 ("the Act"), because Dr Wislang had not
held an APC during the 3 years preceding August 1999. In fact, according to
Council records, Dr Wislang had not held an M C since March 1994. I
attach marked "TMT1" a copy of Dr Wislang's registration details from the
Council's database, printed on 1 November 1999.
3 Dr Wislang's application was originally due to be considered at Council's
meeting on 12-13 October 1999. This was postponed in order to allow the
Medical Practitioners Disciplinary Tribunal ("the Tribunal") time to make its
determination in relation to the disciplinary charges against Dr Wislang. Dr
Wislang was advised of this decision by letter dated 28 September 1999
(exhibit MRW 76 attached to Dr Wislang's affidavit).
4 Dr Wislang made no objection to Council's decision to postpone
consideration of his application, and provided no further correspondence
unt i l after the Tribunal's decision was made on 10 December 1999. On or
about 7 February 2000, the Council's registration administrator, Mr Girven,
advised Dr Wislang by telephone that the Council would be able to consider
his application at its meeting on 8-9 February 2000. Mr Girven invited Dr
Wislang to provide any documents he wished Council to consider at that
meeting, and he subsequently provided the documents referred to in his
facsimile attached to his affidavit marked MRW 77.
In the High Courl of New Zealand
No. 3
Afftdav~t of Tania Mureen Turfrey for Med~cal Council of
New Zealand
16 May 2001
5 [Paragraphs 138-1471 I confirm that the Council proposed to grant
Dr Wislang a new APC subject to conditions under s54(2)(b) of the Act. A
copy of the extract of Council's minute of the meeting on 8-9 February 2000
dealing with Dr Wislang's application is attached marked "TMT2".
Dr Wislang was advised of the Council's decision by letter dated 2 March
2000 ("MRW 78"). The letter states in part:
"Pursuant to section 53(2) of the Act, Council proposes to issue an annual practising certificate with the following conditions:
that you restrict your independent practice to hair transplants; and
that you nominate a general overseer who will also agree to be your mentor.
In accordance with section 53(2)(a) of the Act, the grounds on which Council proposes to impose conditions on your annual practising certificate are as follows:
= Council considered that you would, in returning to practice, require assistance to set up good systems to ensure that you satisfy statutory requirements.
I n accordance with section 53(2)(b) of the Act I advise that in reaching its decision the Council relied on written material supplied by you."
6 The conditions proposed by the Council required Dr Wislang to restrict his
independent practice to hair transplants and to nominate a general overseer
to act as mentor to Dr Wislang . The Council proposed to impose these
conditions because it considered that ~ r ' w i s l a n g required assistance to set
up good systems to ensure compliance with statutory requi re~ents . The
Council was concerned that Dr Wislang's practice was, in his own words,
"chaotic" and considered this state of affairs to be unsatisfactory. This
concern was reflected by the limitation of conditions to Dr Wislang's
independent practice. Council did not consider that Dr Wislang's
In the H~gh Court of New Zealand
No. 3
Aff~davlt of Tan~a Mureen Turfrey for Med~cal Counc~l of
New Zealand
16 May 2001
unsatisfactory administrative record would be of concern in the context of a
group practice or in an academic environment. In such an environment, it
was considered the assistance of other practitioners would be available to
help Dr Wislang and that no further oversight would be necessary. . . . , Y '
\ \,
7 Dr Wislang was notified of this decision and glven an opportunity to,.make ; \, , \
2 .. ".* . ' , subrnisslons in response as required under s53(2) of the Act. He respo<&d ;. I) ., '
1 t
by maklng wrltten submissions ("MRW 79" and "MRW ;
i 3
I
duly considered by the Council. Council responded to Dr Wislang's
submissions by letter dated 4 April 2000 ("MRW 84"). This letter correctly
records (at paragraph 4) the Council's reasons for imposing the conditions
related to Dr Wislang's unsatisfactory administration of his practice. The
Council was not concerned about Dr Wislang's professional expertise, or his
treatment of patients. Rather, it was concerned that he had demonstrated
poor judgement in the past as regards to his administrative obligations.
Dr Wislang was given a further opportunity to make additional submissions
by 5 April 2000. This date was selected in order to allow the Council time to
consider any such further submissions before making its final decision as to
Dr Wislang's application for an APC at its April meeting.
8 [Paragraph 147-1551 At Dr Wislang's request, the Council deferred
consideration of his application for an APC until its June meeting.
Subsequently this was deferred again until the August meeting (held at
10 August 2000 at Wellington). By facsimile dated 27 July 2000 (Wislang
exhibit MRW 88) Dr Wislang advised the Council that he wished to attend
the August meeting with counsel and make submissions.
9 In preparation for the August meeting, Mr Girven prepared a briefing paper
for the Council setting out the issues relevant to the application and annexing
supporting documents to be taken into consideration. A copy of the briefing
paper is attached marked "TMT3". The documents provided to the Council
were:
a. Dr Wislang's application for an APC for the 2000-2001 practising
year dated 17 April 2000. A copy of Dr Wislang's application form
is attached marked "TMT4";
b. a copy of the Tribunal's final decision and order dated 10 December
1999 is attached marked "TMTS":
C. corrected submissions of Dr Wislang dated 29 March 2000 are
attached marked "TMT6";
d. letter from Dr Wislang dated 27 July (Wislang exhibit no. MRW
88);
In the Htgh Court of New Zealand
No. 3
AMdav~t of Tan~a Mureen Turfrey for Medical Counc~l of
New Zealand
16 May 2001
e. letter to Dr Wislang from Council dated 4 April 2000 is attached
marked "TMT7";
f . letter to Dr Wislang from Council dated 13 April 2000 is attached
marked "TMT8".
10 Dr Wislang attended the August meeting together with his legal counsel,
Dr Taylor. Dr Taylor made submissions on behalf of Dr Wislang (including
submissions on the matters raised in the Council's letter of 4 April 2000),
and members of the Council questioned Dr Wislang. The Council then
reserved its decision. I attach marked "TMT9" an extract of the Council's
minutes of its meeting on 10 August 2000 together with its subsequent
resolution concerning Dr Wislang's application.
11 I attended the Council meeting on 10 August 2000. I confirm that no
transcript was made of proceedings at that meeting. But so far as I recall the
Council members discussed Dr Wislang's failure to observe the
requirements imposed on practitioners generally under the 1995 Act,
including the requirement under S 40 that practitioners must notify changes
of address to the Registrar of the Council. Council also discussed the fact
that Dr Wislang had not paid the penalty or costs imposed on him by the
Tribunal, despite the award of costs having been upheld by the District Court
in April 2000. This issue was relevant to the question of Dr Wislang's APC
under s 51(3) of the Act, which permits the Registrar to withhold an APC
when a practitioner fails to pay penalties or costs imposed by the Tribunal.
As I have explained earlier in this affidavit, the application had to be
considered by the full Council (rather than the Registrar) because Dr
Wislang had not held an APC during the previous 3 years.
12 I also recall that the Council members present at the meeting on 10 August
2000 were concerned at Dr Wislang's responses to their questions. I n
particular, Dr Wislang was asked about his plans for practising in the future,
i f the Council approved his application. As I recall, Dr Wislang replied that
he did not know where he was going to practice or how his practice would
be organised. I t was clear to Council members from this response that he
had given no thought to these issues at all.
In the High Coufl of New Zealand
No. 3
AH~dav~t of Tania Mureen Turfrey for Med~cal Council of
New Zealand
16 May 2001
13 Overall, I recall that the Council formed the impression at the meeting on 10
August that Dr Wislang had been consistently disorganised in his approach
to practising medicine. This had resulted in his failure to maintain a current
APC or to give notice of his current address. It also manifested itself
through his lack of preparation for the meeting on 10 August. This was of
particular concern to Council because Dr Wislang had gone to considerable
trouble in seeking a new M C , and yet he had not made any plans as to
where or how he would practise. It was both reasonable and foreseeable that
the Council would ask about such matters but Dr Wislang seemed to have
given it no thought at all. It also appeared from the Tribunal's decisions that In the Hlgh Court
he had displayed a similar lack of attention to issues in his hearings there. of New Zealand
The Council did not consider that any of these issues were especially NO. 3
Aifidav~t of Tan~a significant if considered in isolation. Rather, it was concerned at the pattern Mureen Turfrey for
Medical Councll of
of conduct. In particular, it was concerned that if Dr Wislang could not New Zealand
16 May 2001 manage to deal effectively with the Council or the Tribunal, it did not bode
well for his management of patients
14 [Paragraphs 156-1591 Following the meeting of 10 August 2000, Council
decided to approve Dr Wislang's application for an APC on a wider basis
that the conditions originally set out in its letter of 2 March 2000. The
Council's minutes of the meeting note the following:
"(a) . Dr Miles Roger Wislang (05965) MB ChB 1967 Otago
Council considered Dr Wislang's application for an annual practising certificate at its meeting in February 2000, and proposed to issue an APC subject to the following conditions:
1 That Dr Wislang restrict his practice to hair transplants and,
2 That he nominate a general overseer who would also agree to be his mentor.
Dr Wislang chose to exercise his statutory right to make submissions or be heard on this matter and attended Council's meeting at 2prn Thursday 10 August 2000 with his representative Dr G Taylor.
Both Dr Taylor and Dr Wislang made verbal and written submissions and Council members and the Assistant Registrar questioned Dr Wislang directly. As part of those submissions Dr Wislang and Dr Taylor requested Council allow Dr Wislang's scope of practice to include the teaching of anatomy and biosurgical research.
Council resolved that subject to legal advice supportin1 the proposed conditions on Dr Wislang's APC an APC be issued subject to those conditions, but that the scope of practice could be widened to include the teaching of anatomy and biosurgical research." (emphasis in original)
15 In making this decision, Council had regard to the documents referred to i n
paragraph 9 of this affidavit, together with the following:
a. Dr Wislang's facsimile of 7 February 2000 (Wislang exhibit MRW
77);
b. Dr Wislang's curriculum vitae; In the Hlgh Court of New Zealand
c. the affidavits of Dr Paul Wilson and Dr Stephen Gilbert sworn in NO. 3
Aff~davlt of Tanla
Support of Dr Wislang's application (Wislang exhibits MRW 3 1 and ~ u r e e n Turfrey for Med~cal Council of
MRW 41);
d. written and oral submissions on behalf of Dr Wislang (the written
submission is Wislang exhibit MRW 89); and
e. Dr Wislang's answers in response to questions posed by members of
the Council at the August meeting.
16 Dr Wislang was notified of Council's decision by letter dated 20 September
2000. A copy of this letter is attached marked "TMTIO". The letter records
(at paragraph 3) the documents relied on by Council in reaching its decision,
and enclosed pamphlets produced by the Council entitled "What Yocl Can
Expect: The Competence Review Process7' and "General Oversight:
Gliidance for doctors receiving and providing general oversight". Copies of
these pamphlets are attached marked "TMT11". Council's reasons for
imposing conditions on Dr Wislang's APC are set out at paragraphs 4.1 to
4.11 of that letter. In particular:
a. the Council accepted Dr Wislang's submission that he wished to
return to research and teaching of medicine (para 6 of his corrected
submissions dated 29 March 2000, Wislang exhibit MRW 80). I t
was concerned that he should not be limited in his ability to do so
and therefore determined that no condition should be imposed on his
APC which would have that effect.
New Zealand
16 May 2001
b. Council took the view that it was, under s 54(1) of the Act, required
to satisfy itself as to Dr Wislang's competence before issuing an
APC. The Council was not concerned about Dr Wislang's skill or
safety in his chosen practice area. Rather, i t was more generally
concerned about the way in which Dr Wislang had conducted his
practice. Council took the view that "competence" includes a
doctor's attitudes and judgement, and i t was in this context that it
considered Dr Wislang's competence was open to criticism.
C. the Council considered there were ample grounds on which it could
reach the decision that Dr Wislang's competence (meaning his
attitude and judgement) were unacceptable. He failed to obtain
APCs between 1994 and 1998, but continued to practise with no
regard to the potential harm this could cause to his patients. Dr
Wislang accepted this in the written submissions of his counsel
(paras 7-8). Dr Wislang's lack of organisational and administrative
skills were a further source of concern to the Council. It noted as
examples that Dr Wislang had not kept his address details up to date,
or paid the Tribunal's costs in accordance with its order, or
apparently made any arrangements for future employment once a
new APC was issued.
d. the Council was concerned that this lack of attention to the
administration of Dr Wislang's practice could, if it continued, give
rise to new risks for patients and others dealing with him. It did not
have confidence that Dr Wislang was capable of developing his \
administrative systems to an acceptable level without oversight.
Council had previously given Dr Wislang notice that i t was
concerned about his poor administrative slulls in its letter of 4 April
2000. Dr Wislang's counsel accepted this shortcoming in relation to
the failure to obtain APCs, and suggested i t would be enough if Dr
Wislang put systems in place to ensure he kept his M C current and
undertook professional education as to the importance of
maintaining a current M C . The Council was not persuaded by this
argument. I t considered that the failure to obtain APCs was not a
specific oversight, but rather a symptom of wider organisational
In the H~gh Court of New Zealand
No. 3
Affidavit of Tan~a Mureen Turfrey for Medical Counc~l of
New Zealand
16 May 2001
shortcomings, which manifested themselves in a variety of ways. By
offering to address the symptoms rather than what the Council
considered to be the root of the problem, Dr Wislang demonstrated a
need for oversight of his practice. On this basis, the Council did not
trust Dr Wislang to put his own house in order. Accordingly, i t
ordered that Dr Wislang be subject to general oversight in order to
ensure proper administration.
e. the Council was also concerned not to over-state the importance of
administration, bearing in mind it found no fault with Dr Wislang's
medical skill and practises. For this reason, the requirement of
general oversight was restricted to independent practice. The
Council took the view that no such oversight would be necessary in a
collegial environment.
17 The Council proposed that Dr Wislang be subject to supervision on the same
basis as the general requirement of supervision imposed on all registered
medical practitioners under S 20 of the Act. This requirement was new under
the 1995 Act. Under the previous legislation, generally registered
practitioners did not usually have to be supervised. The Council made a
policy decision exempting practitioners who had held annual practising
certificates for the 5 years prior to the 1995 Act coming into force. This
exemption expires on 1 July 2001, and from that date all generally registered
practitioners will be subject to oversight. The reason for the exemption was
partly to educate practitioners as to the benefits of oversight, and the
obligations of the practitioner and his or her overseer. In addition, the
Council was concerned that, if oversight had been introduced immediately
for all practitioners, there would have been a shortage of suitable overseers.
In this regard practitioners who were eligible for the exemption were also
able to provide oversight until l July 2001.
18 Practitioners who have been granted general registration since the Act came
into force on 1 July 1996 have been subject to oversight.
19 In Dr Wislang's case, the requirement of oversight would be new because he
held a practising certificate prior to 1 July 1996, and because he has never
held an APC under the 1995 Act. However, I emphasise that, by requiring
him to be subject to oversight, the Council was not imposing an unusual or
onerous condition of Dr Wislang's ability to practise medicine. Rather, i t
In the H~gh Court of New Zealand
No. 3
Affidavit of Tania Mureen Turfrey for Med~cal Council of
New Zealand
16 May 2001
was requiring him to be subject to a condition in circumstances where he
would have been exempt until 1 July 2001 if he had kept his M C current.
In any case, I believe that from the Council's perspective the issue is now
moot. Even if the Council were to reverse its order requiring Dr Wislang to
be supervised as a condition of his APC, he will still be subject to
supervision from 1 July 2001 when the exemption expires. This would not
have been the case if Dr Wislang had pursued his application for an APC in
1999 or last year, but he did not.
20 I confirm that Dr Wislang has not pursued his application for a new APC,
and is not currently registered to practice medicine.
21 At paragraph 5 of the letter, Council advised Dr Wislang of his rights to
appeal to the District Council against the decision to impose conditions on
his APC. I am not aware of any appeal having been filed.
In the H~gh Court of New Zealand
NO. 3
Afidav~t of Tan~a Mureen Turfrey for Med~cal Counc~l of
New Zealand
16 May 2001
Sworn at Wellington this
In the High Court of New Zealand --
No. 4 Amended Statement of
Defence of First and Third
In the High Court of New Zealand Defendants 5 June 2001
Wellington Registry CP No. zrvioo
Under the the Judicature Amendment Act 1972
In the Matter of the Medical Practitioners Act 1995
Between Miles Roger Wislang, of Whangaparaoa, registered medical practitioner
Plaintiff
And
And
And
Medical Council of New Zealand, at Wellington
First Defendant
Medical ~ractitioners ~ i s c i ~ l i & i - ~ Tribunal, at Wellington
Second Defendant
The Complaints Assessment Committee of the Medical Council of New Zealand, at Wellington
Third Defendant
Amended Statement of Defence
Dated 5 June 2001
. ' L " " . . , '.' ,, I . I
LtgWgn89 The Terrace PO Box 10246 DX SP26517 Telephone (04) 472 7877 Facsimile (04) 472-2291 $:. - $$;<,?,;; , , !
> ,l,# +-. Solicitor Acting: M F McClelland 1 N J Russell , 9- I 6 8
' + ' ' ',P
Amended Statement of Defence
Monday the 18"' Day of December 2000
The First Defendant and the Third Defendant, by their solicitor, say that:
The Parties
1 They admit paragraph 1 of the Amended Statement of Claim, and further say
that the Plaintiff ("Dr Wislang") is currently an undischarged bankrupt.
2 They admit paragraph 2 of the Amended Statement of Claim.
3 They admit paragraph 3 of the Amended Statement of Claim. In the H ~ g h Court of New Zealand
They admit paragraph 4 of the Amended Statement of Claim. No. 4
Amended Statement of Defence of Flrst
and Th~rd The Background Defendants
5 June 2001
They admit that Dr Wislang graduated Bachelor of Medicine and Bachelor
of Surgery from the University of Otago in 1967, and that lie has
subsequently practised medicine. They otherwise have no knowledge of,
and therefore deny, paragraph 5 of the Amended Statement of Claim.
They admit paragraph 6 of the Amended Statement of Claim.
They admit paragraph 7 of the Amended Statement of Claim.
They admit paragraph 8 of the Amended Statement of Claim.
They admit paragraph 9 of the Amended Statement of Claim, and further say
that Mr Inglis also complained to the Council in or about April 1997, and
that the Council referred that complaint to the Health and Disability
Commissioner.
They admit paragraph 10 of the Amended Statement of Claim.
They admit paragraph 11 of the Amended Statement of Claim and repeat
paragraph 8.
They admit paragraph 12 of tlie Amended Statement of Claim, and further
say that the CAC first advised Dr Wislang that it had been appointed by tlie
President of the Council to assess Mr Inglis' complaint by letter dated 11
November 1998.
They admit paragraph 13 of the Amended Statement of Claim, and further
say that enclosed with the notice was a copy of the Tribunal's leaflet
"Disciplinary Proceedings under the Medical Practitioners Act 1995".
They admit paragraph 14 of the Amended Statement of Claim.
They admit paragraph 15 of the Amended Statement of Claim. In the H~gh Court of New Zealand
They admit paragraph 16 of the Amended Statement of Claim, and further NO. 4
Amended Statement
say: of Defence of F~rs! and Th~rd
Defendants
a. the CAC's letter was dated 3 September 1999; 5 June 2001
b. the CAC7s notice of amended charge dated 30 August 1999 also
stated " J J O L ~ will need to take this into account when preparing your
subniissioizs on penalty. You may also wish to seek legal advice.";
C. the Tribunal's letter stated "The charge ofprofessional cond~ict has
been altered to incorporate Section 109(f) of the Medical
Practitio~zersAct 1995. Yozi will need to take this into acco~i~it when
preparing your s~ibmissions on penalty. You niay also wish to seek
legal advice to assist you i~z this matter."
They admit paragraph 17 of the Amended Statement o? Claim.
In relation to paragraph 18 of the Amended Statement of Claim, they have
no knowledge of the facsimiles referred to, and therefore deny paragraph 17
They admit paragraph 19 of the Amended Statement of Claim.
They admit paragraph 20 of the Amended Statement of Claim.
They admit paragraph 21 of the Amended Statement of Claim, and further
say that they rely on the whole of the transcript of the Tribunal hearing.
22 They admit paragraph 22 of the Amended Statement of Claim, and further
say that that:
a. they rely on the whole of the transcript of the Tribunal hearing; and
b. in addition to research and counselling patients, Dr Wislang also said
he was operating on patients approximately twice a week.
23 They admit paragraph 23 of the Amended Statement of Claim.
They admit paragraph 24 of the Amended Statement of Claim, and further
say that the Chair of the Tribunal also: In the H ~ g h court of New Zealand
(a) urged Dr Wislang to obtain legal advice before the hearing resumed; - - - - - - - No. 4
and Amended Statement of Defence of F~rst
and Th~rd
(b) advised Dr Wislang of his right to apply for a revocation of the Defendants
5 June 2001
suspension order
25 They admit paragraph 25 of the Amended Statement of Claim.
26 They admit paragraph 26 of the Amended Statement of Claim.
27 They admit paragraph 27 of the Amended Statement of Claim.
28 They admit paragraph 28 of the Amended Statement of Claim.
29 They admit paragraph 29 of the Amended Statement of Claim, and say that
the suspension order also stated:
a. that Dr Wislang was unaware of the amendment to the Charge at the
time he pleaded guilty, despite having been given notice of the
amendment by letter dated 3 September 1999;
b. as a result of the amendment Dr Wislang was at risk of being struck
off the register of medical practitioners under s 110(2)(b) of the Act;
and
C. that Dr Wislang could apply to the Medical Practitioners
Disciplinary Tribunal ("the Tribunal") at any time for revocation of
the suspension order pursuant to s 105 of the Act.
They admit paragraph 30 of the Amended Statement of Claim.
They admit paragraph 31 of the Amended Statement of Claim, and say that
Dr Wislang also demanded that the Tribunal review the amended charge, and
advise him of the result of their review by the 16Ih of October 1999.
They admit paragraph 32 of the Amended Statement of Claim.
They admit paragraph 33 of the Amended Statement of Claim.
They have no knowledge of the Tribunal's intention at the time i t prepared
the minute of 4 November 1999, and therefore deny paragraph 34 of the In the H~gh Court
Amended Statement of Claim. They further say that the minute states: of New iealand --------- No. 4
"The result of that amendment is that the Charge as originally Amended Statemen1
formulated and notified to Dr Wislang is reinstated Dr Wislang of Defence of F~rst and Th~rd
pleaded guilty to that Charge. Dr Wislang must however have the Defendants
opportunity to reconsider his position. The Tribunal will invite Dr 5 June 2001 Wislang to confirm his plea .to the Charge as it is now amended by this Minute at the commencement of the hearing. Dr Wislang is to advise the Tribunal immediately if there is to be any change of plea.
They admit paragraph 35 of the Amended Statement of Claim.
They admit paragraph 36 of the Amended Statement of Claim.
They admit paragraph 37 of the Amended Statement of Claim.
They admit paragraph 38 of the Amended Statement of Claim.
In relation to paragraph 39 of the Amended Statement of Claim, they:
(a) admit subparagraph 38(a).
(b) admit subparagraph 38(b).
(c) admit subparagraph 3S(c).
(d) say that Dr Wislang confirmed the truth of MS Davenport's
submission concerning the avalanche of paper and requests he had
generated (page S of the transcript), but sought to glarne others for
the correspondence he had generated, and otherwise deny
subparagraph 3S(d) of the Amended Statement of Claim.
(e) say that Dr Wislang claimed that he had not admitted prescribing
drugs without a practising certificate on any particular occasion, but
nevertheless admitted prescribing drugs without a practising
certificate generally. They otherwise deny subparagraph 38(e) of
the Amended Statement of Claim.
They admit paragraph 40 of the Amended Statement of Claim and further
say that the Tribunal found Dr Wislang guilty of professional misconduct for
practising medicine while not holding a current practising certificate
contrary to s 109(2)(b) of the Act.
In the H~gh Court
They admit paragraph 41 of the Amended Statement of Claim. of New Zealand
------_ No. 4
They admit paragraph 42 of the Amended Statement of Claim. Amended Statement of Defence of F~rst
and Thlrd Defendants
They have no knowledge of any appeal against the District Court decision, 5 June 2001
and therefore deny paragraph 43 of the Amended Statement of Claim.
They admit paragraph 44 of the Amended Statement of Claim.
They admit paragraph 45 of the Amended Statement of Claim, and say that
in its interim decision the Tribunal ordered:
a. that Dr Wislang's registration as a medical practitioner be suspended
for 2 months;
b. that he be censured;
C. that he pay a fine of $8,500;
d. that he pay costs of 35% of actual costs incurred in relation to
investigation and prosecution by the CAC of the complaint against
Dr Wislang, and the hearing by the Tribunal.
They admit paragraph 46 of the Amended Statement of Claim.
They admit paragraph 47 of the Amended Statement of Claim.
They adrnkparagraph 48 of the Amended Statement of Claim.
In relation to paragraph 49 of the Amended Statement of Claim they admit
that Council advised Dr Wislang of its grounds by letter dated 4 April 2000,
and that that letter included a list of docun~ents relied on by Council. They
further say that the letter affirmed that Council had no concerns about Dr
Wislang's clinical and technical expertise, treatment indications or patient
management at the time Dr Wislang's application for an annual practising
certificate was considered. Dr Wislang was invited to complete an
application for a practising certificate for the year commencing 1 April 2000
for consideration at Council's meeting on 30 April 2000.
50 They admit paragraph 50 of the Amended Statement of Claim and say that in
his letter of 10 April 2000, Dr Wislang stated that he would be deferring
lodging an application for practising certificate for the year commencing 1 In the H~gh court of New Zealand
April 2000 and that he would also defer making submissions to Council. --p-,-. No 4
Amended Statement 5 1 They admit paragraph 51 of the Amended Statement of Claim. of Defence of F~rst
and Thlrd Defendants
52 They admit paragraph 52 of the Amended Statement of Claim. 5 June 2001
53 They admit paragraph 53 of the Amended Statement of Claim.
54 They admit paragraph 54 of the Amended Statement of Claim.
55 They admit paragraph 55 of the Amended Statement of Claim.
First course of action as to first reviewable decision
56 I n relation to paragraph 56 of the Amended Statement of Claim, they:
a. admit that the Tribunal's order dated 13 October 1999 was made for
the reasons set out at subparagraphs 5l(i)-(iii) of the Amended
Statement of Claim;
b. admit that the Tribunal found that Dr Wislang was unaware of the
amendment to the charge at the time he pleaded guilty
notwithstanding that he had been given notice of the amendment;
C. admit that the Tribunal found that, based on Dr Wislang's evidence,
it was necessary andtor desirable having regard to the health or
safety of members of the public to suspend his registration pending
the determination of the disciplinary proceedings;
d. otherwise have no knowledge of the Tribunal's reasons for its order
dated 13 October 1999, and therefore deny paragraph 55.
57 They admit paragraph 57 of the Amended Statement of Claim.
5 s They deny paragraph 5 s of the Amended Statement of Claim, and say that
a. they rely on the full terms of the Tribunal's interim order dated 1 3
October 1999; and
b. the Tribunal's interim order of 13 October 1999 and determinations
made therein were based on Dr Wislang's evidence that he had ,he H,gh
of New Zealand knowingly practised medicine without a practising certificate during -- the period April 1994 to April 1998; No. 4
Amended Statement of Defence of F~rst
and Th~rd Second course of action as to second reviewable decision Defendants
5 June 2001
59 They admit paragraph 59 of the Amended Statement of Claim and rely on
the full terms of the Tribunal's decision dated 10 December 1999.
60 They admit paragraph 60 of the Amended Statement of Claim.
61 They deny paragraph 61 of the Amended Statement of Claim.
62 They deny paragraph 62 of the Amended Statement of Claim.
Third course of action as to third reviewable decision
63 They admit paragraph 63 of the Amended Statement of Claim.
64 They admit paragraph 64 of the Amended Statement of Claim.
65 They deny paragraph 65 of the Amended Statement of Claim, and say that
Dr Wislang gave inadequate notice of any change of address on or about 26
April 1993, and that he made subsequent representations to the Council that
his address was unchanged.
66 They deny paragraph 66 of the Amended Statement of Claim.
And for a further and alternative defence
67 The first, second and third reviewable decisions described in the Amended
Statement of Claim are moot and any relief ordered by the Court would be
futile.
In the H~gh Court of New Zealand
No. 4
Amended Statement of Defence of Ftrst
and Th~rd Defendants
5 June 2001
This document is filed by Matthew Fairfax McClelland, solicitor for the abovenamed first defendant and third defendant, of the firm of KPMG Legal, Wellington. The address for service of the abovenamed first defendant and third defendant is S9 The Terrace, Wellington.
Documents for service on the plaintiff may be left at that address for service or may be -
a. posted to the solicitor at cl- W M G Legal, P 0 Box 10246, Wellington;
b. left for the solicitor at a document exchange for direction to c/- KPMG Legal, DXSP26517, Wellington; or
c. transmitted by facsimile to 04 472 2291, provided that they are clearly marked In the H1ghCourt of New Zealand
for the attention of the solicitor and that a confirmation copy is forthwith sent by--- -- ordinary post or document exchange. NO 4
Amended Statement of Defence of F~rst
and Th~rd Defendants
5 June 2001
In the High Court . of New Zealand
No. 5 IN THE HIGH COURT OF NEW ZEALAND Second Affidavit of Miles
Roger Wislang WELLINGTON REGISTRY CP No. 219100 25 May 2001
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF the Medical Practitioners Act 1995
BETWEEN MILES ROGER WISLANG
Plaintiff
AND MEDICAL COUNCIL OF NEW ZEALAND
First Defendant
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Defendant
AND COMPLAINTS ASSESSMENT COMMlllEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
SECOND AFFIDAVIT OF MILES ROGER WISLANG DATED DAY OF MAY 2001
HANNING CONNOR Solicitors
(P J Connor) P 0 Box 10376 OX SP 23544
Phone: 499 3280 Fax: 499 3308 WELLINGTON
email hanning .connor@xtra.co.nz
Counsel G D S TAYLOR
Barrister P 0 Box 5294 DX SP22510
Phone: 495 3451 Fax 495 3458 email: graham.taylor@johnsaImond.co .nz
2
AFFIDAVIT OF MILES ROGER WISLANG
I, MILES ROGER WISLANG, of Whangaparaoa, registeed medical
practitioner, swear that:
INTRODUCTION
1. I am the Plaintiff in this proceeding.
2. On or about Friday, 18 May 2001, the First and Third
Defendants served their affidavit in opposition and list of In the tilgh Court of New Zealand
documents on my solicitors. I saw a faxed copy of the affidavit - No. 5
the same day. Second Afridav~t of Miles Roqer W~slanq
25 May 2001
3. On or about Tuesday, 22 May 2001, copies of documents
inspected by my counsel the previous day were received by
counsel. I saw faxed copies of the documents that afternoon.
4. On reading those documents, I learned for the first time that
my personal file held by the First Defendant contained my
notice of my change of registered address to 38 Glengarry
Avenue, Manly, Whangaparaoa, which was and remains my
home address. Annexed hereto and marked "MRW2.1 is the
faxed copy of that document dated 26 April 1993.
before me:-
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
BETWEEN
AND
AND
AND
In the High Court of New Zealand P---------
No. 6
Court Judgment of Wild J. in High,
21June2001
CP2 19/00
MILES ROGER WISLANG
Plaintiff
MEDICAL COUNCIL OF NEW ZEALAND & ORS
First Defendant
MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Defendant
COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Defendant
Hearing: 7,8 June 2001
Counsel: G D S Taylor for the Plaintiff M F McClelland and N J Russell for the First and Third Defendants B A Corkill for the Second Defendant (leave to withdraw)
Judgment: 21 June 2001
JUDGMENT OF WILD J
CONTENTS
Introduction Factual background The legislation First cause of action - Tribunal's suspension decision of 8.10.99 Amended charge Lack of legal representation Error of statutory interpretation Second cause of action - Tribunal's substantive decision of 10.12.99
Paragraph No. 1 4 38 4 1 46 50 52 5 7
Legal representation and inadequate preparation Dr Wislang not a medical practitioner Tribunal misdirecting itself as to its reasons for re-amending the charne
58 59 62
Erroneous award of costs Third cause of action - Council's decision of 20.9.00 imposing conditions on Dr Wislang's annual practising certificate Com~etence
63
74
Reliance on Tribunal 'S decision Dr Wislang 'S lack of overall ability to organise his affairs Discretion
--- No. 6
. .
78 79 85
Result Costs
Judgment of W~ld J In H~qh Court
21 June 2001
of New Zealand
86 pp- 8 7
Introduction
1 7 the ~ ~ g h court
[l] The plaintiff, Dr Wislang, is a registered medical practitioner. He seeks
judicial review of three successive decisions in 1999 and 2000 of the disciplinary
and governing bodies of his profession. It is accepted that those decisions were
1 exercises of statutory powers amenable to review under the Judicature Amendment
Act 1972. He alleges that each decision is marred by numerous and cumulative l
l 2 0 errors of law.
[2] When charged Dr Wislang admitted professional misconduct in that for four
years he practised without a practising certificate. During that time he treated
patients and prescribed drugs. As a consequence of that misconduct Dr Wislang
initially had his registration suspended until the charges against him were
determined. That determination was to censure him, suspend him from practice for
two months, fine him and order him to pay costs. Subsequently, he was permitted to
obtain a practising certificate upon two conditions. He has not yet done so.
[3] In this proceeding Dr Wislang seeks to attain a position where all the
penalties imposed on him, save for the censure, and one of the conditions upon
30 which he was permitted to obtain a practising certificate and which he finds
unobjectionable, are quashed.
Factual background
[4] After graduating in medicine in 1967 Dr Wislang practised medicine for
several years before travelling overseas.
[5] His practising certificate expired on 3 1 March 1994 while he was abroad.
[6] Upon returning to New Zealand in or about August 1994 he again practised
medicine until late April 1998. In the H~gh Coud of New Zealand
[7] Consequent upon a patient's complaint made in or about September 1998, the NO 6
Judgment of W I I ~ J third defendant, The Complaints Assessment Committee of the Medical Council of I" Hlqh Court
21 June 2001 New Zealand (I will refer to it as the "CAC"), on 2 1 May 1999, charged Dr Wislang
/d under S 93(l)(b) of the Medical Practitioners Act 1995 ("the Act") that:
"(a) In the course of performing hair transplantations upon Andrew Inglis (also known as Andrew Stylianou) during 1996 and 1997 practised medicine without holding a current practising certificate.
(b) Andlor he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate."
22 July 1999 was fixed for the hearing of the charge.
[8] By letter dated 11 June Dr Wislang informed the second defendant ("the
2.U Tribunal") "I now formally fully admit the charge as made out against me", and
advised that he wished to be heard only as to penalty if and when appropriate.
[9] By letter on 3 August the Tribunal advised Dr Wislang that the CAC "has
accepted your plea of guilty at the level of professional misconduct" and advised that
it would hear his submissions as to penalty on 16 September. Although Dr Wislang
acknowledges receiving that letter, he claims not to have received a bundle of
background documents enclosed with it.
[l01 On 27 August Dr Wislang applied to the first defendant ("the Council") for a
practising certificate for the year ending 3 1 March 2000. The Council responded (on
28 September) that it could not process this application until the Tribunal had
determined the disciplinary charge against the plaintiff.
[l l ] On 3 September - 13 days before the scheduled hearing - the Tribunal wrote
again to the plaintiff advising him that the CAC had amended the charge against
him. The letter advised:
"The charge of professional misconduct has been altered to incorporate Section 109(f) of the Medical Practitioners Act 1995. You will need to take this into account when preparing your submissions on penalty. You may also wish to seek legal counsel to In the HI^^ Court
of New Zealand
assist you in this matter." No. 6
Judgment of W~ ld J
C121 The letter then set out the new charge, again repeating that the CAC had In Highcourt
21 June 2001 reason to believe that a ground existed entitling the Tribunal to exercise its powers
under Section 109 of the Act. The amended charge read:
"The Complaints Assessment Committee, pursuant to Section 93(l)(b) Medical Practitioners Act 1995, charges that Dr Miles Wislang, Medical Practitioner of Auckland:
(a) In the course of performing hair transplantations upon X (also known as Y) during 1996 and 1997 practised medicine without holding a current practising certificate.
(b) Andor 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 andtor that Dr Wislang practised medicine outside the extent permitted by, or not in accordance with the conditions of, his registration or any practising certificate held by him."
(I have substituted X and Y for the identity of the patient.)
[l31 Because of the minimum 20 working days notice stipulated in S 103(l)(d) of
the Act, the hearing date was amended to 7 October 1999.
30 [l41 At the hearing on 7 October the plaintiff appeared in person. The hearing
commenced at 10.52 a.m. and continued into the afternoon, the Tribunal adjourning
at 2.42 p.m. The transcript of the hearing occupies 28 pages. Dr Wislang made
submissions, gave oral evidence on oath and was questioned. During the hearing the
following points emerged:
[a] Dr Wislang confirmed he had knowingly practised medicine without
a practising certificate since 1 April 1994. He explained:
" ... and wrongly I didn't reapply for my practising certificate I came back in a mind realising of course I had been sent the document in April, which was August when I came back from America and in the malaise of being back I wrongly reacted to the In the tilgh court
presence of this - I was in solo practice, I didn't have a of New Zealand - Secretary, I had nurse assistance sometimes, but my
No. 6
book-keeping was hopeless . . ." Judgment of W I I ~ J In Hlqh Court
And at another point:
". . . I was a solo operator - it was neglect. I realise I slipped - there are very good reasons why one should have one. I wasn't appraised of why these certificates were really necessary. I had this belief that practising certificates were not a supervisory assessment type of document, something that says you are fit to practice. I did look at the sheet that came in 1996 which asked for occupational assessment, specifics of what you're engaged in, and I couldn't see myself fitting into it. I am not a GP, I am not a specialist surgeon so what am I? I knew there were other with and without practising certificates and in a sense I was wrongly lulled into this downplaying the significance of it. It was an absurdity. I can't altogether account for it. When I look at what a practising certificate achieves now I can see excellent reasons why I shouldn't have neglected
9' it. . . .
[b] The Tribunal several times confirmed to Dr Wislang that its whole
purpose was to ascertain and deal with matters of public interest and
safety (cf S 3(1) of the Act).
[c] Dr Wislang told the Tribunal he had applied one or two months
earlier for a practising certificate and intended to re -cornqe~e ". '
;, practising on his own account if he could obtain an annul@zrit of hrs. -,:.
'< ,. ' bankruptcy (he had been bankrupted on l April 19* *). .'."
5 . 54, , -\v 84
[d] Dr Wislang explained that he thought the charge against him had been
amended to reflect a change in the legislation. It became apparent
that Dr Wislang had not appreciated that he now faced the possibility
of being struck off the register of medical practitioners. The Chair of
the Tribunal said at the conclusion of the hearing:
"CHAIR: it is clear that you, when we commenced this morning, did not realise that the Tribunal was considering penalty and that those penalties included removing your name from the register . . . yes
In the H~gh Court
Obviously that is the gravest penalty that the Tribunal of New Zealand -I_-
could impose We are concerned that you are not No. 6
disadvantaged, or feel at all disadvantaged in any Judgment of W I I ~ J
opportunity you had to present as much material to the ~n HI~II court
Tribunal as you would wish. The Tribunal also feels 21 June2001
that it would like more information and suspects that you have more information you would like to provide. We propose to ask you to, within 14 days of today's date, provide any further such material by way of character evidence or any evidence relevant, having heard the thrust of our inquiry, and the nature of our inquiry so far as safety public issues are concerned. I then propose to invite MS Davenport within 7 days after that to make any submissions by way of comment on that material and then we propose to reconvene the hearing as soon as possible after that time, because we are concerned at the gravity of this hearing for you, potentially, and we would like to ensure that we have all the information that we should have in determining this charge. In the meantime, we are going to make an order under S 104 of the Act, where you will see, under S 104(l)(a), the Tribunal has the power to suspend the registration of the medical practitioner. You have the right, once an order is made, and it must be made in writing and must contain a statement of the reasons upon which it is based. So I would urge you to take legal advice, whether on a probono basis, or the community law office, but if you wish to make a revocation of that order and get your practising certificate then you should apply to the Tribunal for revocation of that order.
[ l 51 By order, pursuant to S 104(l)(a) of the Act, and dated 8 October 1999, the
Tribunal ordered:
"THAT the registration of Dr Miles Roger Wislang be suspended until the disciplinary proceedings in respect of which the Notice was issued have been determined."
1161 The Tribunal's reasons for that order are dated 13 October 1999. They
include:
A hearing as to the penalty which this Tribunal ought to impose was convened in Auckland on Thursday, 7 October 1999. In the course of the hearing Dr Wislang stated, inter alia:
In the H~gh court (i) That he had not held a practising certificate since of New Zealand
1994; No. 6
(ii) That during the period April 1994 to April 1998, Judgment ~n ~ l q h of court W I I ~ J
notwithstanding that he was aware that he had not 21 June2001
obtained a practising certificate he had carried on his medical practice, which practise included carrying out hair transplants operations; advertising his medical services in the Yellow Pages and elsewhere; treating patients, including prescribing and administering drugs; and charging fees for medical services rendered in the course of his medical practice.
(iii)That he had obtained prescription medicines, drugs used in local anaesthetics and such other drugs as he 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.
\
(iv)That when he had pleaded guilty to the Charge he was unaware that:
The amended charge incorporated Section 109(f) of the Act. This was notwithstanding that the Tribunal, by letter dated 3 September 1999, gave Dr Wislang written advice of that fact AND that a copy of the Act had previously been provided to him by the Tribunal AND that he was again advised by the Tribunal to seek legal advice; and
As a result of the amendment he was, by virtue of the operation of Section 110(2)(b), at risk of the Tribunal making an Order that his name be removed from the register of medical practitioners, i.e. that he could be struck off the register.
6. Dr Wislang also told the Tribunal that he was a bankrupt and that he had been ordered by the Official Assignee to cease trading as a sole practitioner in April 1998 and he had not sought employment as a medical practitioner because he preferred to work alone, and that he was not willing to work as an employee medical practitioner.
7. Dr Wislang advised the Tribunal that he has applied to the Medical Council for a practising certificate to enable him to recommence medical practice on his own account.
8. As a result of the evidence given by Dr Wislang the Tribunal In the HI^^ Court
has determined that Dr Wislang has demonstrated a lack of of New Zealand ---- insight, judgment and ability to organise his affairs such that it NO. 6
is necessary andfor desirable having regard to the health or Judgment of W~ld J
safety of members of the public that Dr Wislang's registration ~n H I Q ~ Court
be suspended pending the determination of the disciplinary 21 June 2001
proceedings against him."
1171 Following the adjournment of the 7 October hearing, the plaintiff sent at least
nine letters or facsimiles to the Tribunal. The gist of these was:
[a] (On 11 October, i.e. before the Tribunal had given its reasons) to state
that he had not pleaded guilty to the amended charge and formally
denied it; and to allege that, because he had already pleaded guilty to
the charge originally laid, the CAC was functus oficio and lacked
jurisdiction to amend the charge which was therefore a nullity.
[b] To request (on 12 October, also before the Tribunal gave its reasons)
a teleconference to deal with the question of the validity of the
amended charge.
[c] (On 14 October) to allege firther that, because no conditions attached
to any practising certificate he had ever held, he could not have
practised beyond the extent permitted by any such conditions, and to
reiterate his submission that it was in nobody's interests for the
Tribunal to continue deliberating on penalty under a "mis-charge".
[d] (On 15 October) to point out that, although his communications of 11
and 12 October preceded the Tribunal's reasons dated 13 October,
they appeared not to be reflected in those reasons, and certainly the
point made in his 14 October communication was not, and again to
press for an urgent teleconference to deal with the validity of the
amended charge.
[ l 81 In the face of these communications from Dr Wislang, the Tribunal appointed
an Auckland Queen's Counsel as its legal assessor. Having received the assessor's In the H~gh Court
advice, by Minute dated 4 November, the Tribunal notified its intention, at the o f~ewzea land
1 0 commencement of the resumed hearing which it scheduled for 11 November 1999, NO. 6
Judgment of W I I ~ J
and in exercise of its power in clause 14 of the First Schedule to the Act, to amend In ~ l q h court
21 June2001
the charge against Dr Wislang by deletion of the allegation that he had breached
S 109(l)(f) of the Act. That minute:
[a] Explained the reasons for that proposed amendment (i.e. the nature of
the legal assessor's advice) and indicated that the effect of the
amendment was to reinstate the original charge.
[b] Stated that the Tribunal would invite Dr Wislang to confirm his plea
to the charge "as it is now amended by this minute" at the
commencement of the hearing.
[c] Assuming Dr Wislang maintained his plea of guilty to that charge,
indicated the Tribunal's intention on 11 November to receive
submissions only as to penalty.
[d] Asked Dr Wislang to advise the Tribunal immediately if there was to
be any change of plea.
[l91 Having received the Tribunal's minute, Dr Wislang on 5 November sent a
further facsimile to the Tribunal. This:
[a] Contended that the original charge was also flawed, and suggested
that it be further amended to remove any reference to professional
misconduct, following which Dr Wislang "would consider entering a
plea of guilty to the charge as so expunged". Dr Wislang added, as a
pre-requisite to pleading guilty, that he be given an assurance that no
W h e r charges were pending or would be laid against hlm by the
CAC in respect of the original patient complaint.
[b] Submitted that the Tribunal's interim suspension order of 13 October In the Htgh Court
"incorporated as a manifestly principal reason . . . that (he) had of New Zealand
pleaded guilty to a charge which carried the penalty of removal of ~ o . 6
Judgment of W I I ~ J (his) name from the medical register, ostensibly for reasons of public In Hlqh court
21 June 2001 safety", "always was spurious and unsustainable" and ought to be
revoked immediately.
[20] On 8 November the Secretary of the Tribunal by facsimile advised Dr
Wislang that the Tribunal would deal with the matters raised in his 5 November
facsimile at the hearing on 1 1 November.
[21] By further facsimile later on 8 November Dr Wislang renewed his request
that the original charge be amended and the order of suspension revoked before the
hearing resumed on 11 November, so as to minimise the prejudice to him
B professionally from the 11 November hearing which was held in public.
[22] The Secretary of the Tribunal responded to Dr Wislang on 9 November. She
said that the Tribunal did not intend further amending the charge. She pointed out
that 11 November was the earliest date on which the Tribunal could hear Dr
Wislang's application for revocation, and pointed out that events were likely to
overtake that application, as the suspension was only until the disciplinary
proceedings had been determined, and the Tribunal intended to determine them on
1 1 November.
[23] The Tribunal's adjourned hearing resumed on 11 November. Invited to enter
a plea, the plaintiff pleaded guilty to practising without a certificate but not guilty to
professional misconduct. Once the effect of S 109(2) had been explained to him, he
pleaded not guilty to the charge as framed. The hearing then proceeded and is
recorded in 15 pages of transcript. Significant points made by Dr Wislang in
evidence include:
[a] He had incurred substantial, but as yet unknown, legal expenses in
obtaining legal advice from two barristers.
[b] The "avalanche of paper" referred to by the CAC's counsel was her In the H~gh Court
fault, not his, since it was in response to the original, defective charge of ~ e w zealand
laid against him. NO. 6
Judgment of Wild J In Hlqh Court
[c] All the costs of the 7 October hearing and of all the time and paper 21 June200'
resulting from "the false charge", should be borne by the bodies
which promoted that charge.
[d] Taking issue with the interpretation of "medical practitioner"
advanced by counsel for the CAC.
[24] Some of the evidence heard by the Tribunal has not been transcribed and is
not before the Court.
[25] Having heard submissions from counsel for the CAC and from Dr Wislang
(again appearing in person) the Tribunal determined:
[a] To suspend Dr Wislang's registration for two months.
[b] To censure him.
[c] To fine him $8,500.
[d] To order him to pay $18,301, being 35% of the total costs and
expenses of the CAC's inquiry and prosecution and of the Tribunal's
hearings (totalling $52,289).
[26] The Tribunal's interim decision setting out those penalties is dated 16
November and its subsequent supplementary decision giving its reasons is dated 10
December.
[27] Some lengthy passages from that 10 December decision are unavoidable:
3.6 In response to questions from the Tribunal, Dr Wislang stated:
(i) That he had not held a practising certificate since In the t i~gh Court of New Zealand
1994; - No. 6
(ii) That during the period April 1994 to April 1998, Judgment of wild J
notwithstanding that he was aware that he had not In Hlqh Court
obtained a practising certificate he had carried on his 21 June2001
medical practice, which practise included carrying out hair transplants operations; advertising his medical services in the Yellow Pages and elsewhere; treating patients, including prescribing and administering drugs; and charging fees for medical services rendered in the course of his medical practice.
(%)That he had obtained prescription medicines, drugs used in local anaesthesia and such other drugs as he 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 dealt with him in the belief that he was legally entitled to obtain such drugs and medications.
(iv)That when he had pleaded guilty to the Charge he was unaware that:
The amended charge incorporated Section 109(l)(f) of the Act, i.e. notwithstanding that the Tribunal, by letter dated 3 September 1999, gave Dr Wislang written advice of that fact AND that a copy of the Act had previously been provided to him by the Tribunal AND that he was again advised by the Tribunal to seek legal advice; and
As a result of the amendment he was, by virtue of the operation of Section 1 10(2)(b), at risk of the Tribunal making an Order that his name be removed from the register of medical practitioners.
3.7 As a result of this evidence and because he was clearly unprepared to present submissions on penalty (as a result of his pleading guilty to the charge), the Tribunal decided that it would be unfair to Dr Wislang if the hearing was to proceed when he was at any disadvantage and in the absence of his being able to seek legal advice.
3.8 The Tribunal also was concerned that Dr Wislang had indicated his intention of recommencing practice as soon as he could get his affairs in order and that he intended to make an application to the Medical Council for a practising certificate as soon as he was able to commence that process.
3.9 Accordingly, the Tribunal adjourned to consider the situation In the ulgh Court of New Zealand
which had arisen and after it considered the evidence and -___ submissions made up to that point in the hearing, it determined NO. 6
that Dr Wislang had demonstrated such a degree of a lack of Judgment of W~ld J In H~qh court
insight, judgement and overall ability to organise his affairs that it 21 June 2001
was necessary andlor desirable having regard to the health and safety of members of the public that his registration be suspended pending the determination of the charge. The Tribunal simply came to the view that in all the circumstances the most prudent course to adopt was to ensure that the status quo was maintained until this matter could be resolved.
3.10 The Tribunal is satisfied that had Dr Wislang made any sensible and prudent attempt to obtain advice, or indeed to have acquainted himself with the relevant provisions of the Act by way of preparing for the 7 October hearing, the significant costs in terms of time and expense caused to himself, the Tribunal and to the CAC as a result of the necessity to adjourn the hearing, and the events that followed in the period after the original hearing was adjourned, would have been avoided.
3.1 1 The Tribunal is satisfied that all of these costs and the obvious costs in terms of stress and worry caused to Dr Wislang himself because the original hearing had to be adjourned, resulted entirely from Dr Wislang's own conduct. Dr Wislang clearly lacked insight into the seriousness of his failure to obtain a practising certificate, which failure persisted for over four years. The Tribunal is satisfied that Dr Wislang's failure to obtain a practising certificate and to make any adequate preparation for the hearing of the charge resulted from what appears to be an absence of any ability to organise his affairs appropriately.
3.12 This lack of judgment also displayed itself in other ways. l For ,
example, Dr Wislang also appears not to have given any~thought to the jeopardy in which he placed other persons with whom bee,. had dealings during the period he was carrying on his dl&$ejiF-+: practice without holding a practising certificate. For exam'pk, y e . '" . pharmacists and drug companies who filled prescriptions ahd~rr.+; i v
6 '$ '<, '
<> ,
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.
3.16 MR Raynor Asher QC, Barrister, of Auckland was appointed by the Tribunal, and the Chair, Mrs Brandon, met with Mr Asher to provide hm with a copy of the Tribunal's file. After receiving and considering the advice provided to the Tribunal by Mr Asher, it determined that, in the circumstances of && In the HI^^ court
of New Zealand case, i.e. in the absence of any substantive complaint and thus -- any evidence beyond the anecdotal and often confusing NO. 6
evidence given to the Tribunal by Dr Wislang himself in Judgment of W I I ~ J In H ~ q h Court
response to questioning by the Tribunal, the allegation that Dr 21 June 2001
Wislang breached Section 109(l)(f) of the Act should be withdrawn.
9. COSTS:
9.1 PURSUANT to Section 110 of the Act the Tribunal has the power to order Dr Wislanag to pay part or all of the costs and expenses of and incidental to the inquiry and hearing.
9.2 DR Wislang submitted that a large proportion of the total costs incurred had occurred as a result of the CAC's amending the charge and that he had incurred legal costs obtaining advice in the period between the adjourned hearing (7 October 1999) and the resumed hearing on l l November 1 999.
9.3 THE Tribunal has taken those matters into account. It has also taken into account the fact that Dr Wislang pleaded guilty to the charge on both occasions he was invited to plead. However the Tribunal also considered that it was appropriate to take into account the inescapable fact that had Dr Wislang given this matter the attention it required in the period between the time he was advised of the amended charge and the commencement of the hearing, a period of almost one month, the positive deluge of material which he generated following the adjourned hearing would have been avoided as it largely comprised material which could have been presented to the Tribunal in the form of submissions in the usual way. The Tribunal and the Complaints Assessment Committee have both undoubtedly incurred significant additional costs as a result of Dr Wislang's failure to organise himself for the hearing and to take advantage of the material and assistance
given to him by the Tribunal prior to the commencement of the hearing of the charge.
9.4 THE costs of the hearing have amounted to $52,288.97 apportioned:
Tribunal Expenses:
Hearing Fees $10,535.41
Accommodation and Meals 1,152.43
Advertising 86.68
Equipment and Room Hire 594.44
Legal Assessor 3,990.00
Photocopy 11.70
Stenographer' s fees 1,425.68
Tolls 221.34
Travel 5,384.74
23,402.42
CAC Costs: Legal Counsel's Fees 14,767.99
Member Fees 5,057.81
Catering 54.12
Sundry Expenses 215.61
Hire Room & Equipment 185.00
TOTAL
Legal Assessor Fees 8,606.02 28,886.55
9.5 INCLUDED in the Tribunal's expense is $3,990.00 for the cost of appointing a Legal Assessor. This was a cost which was incurred, at least in part, at the request of Dr Wislang.
9.6 AS a general guide, a finding of guilt at a level of professional misconduct generally attracts an order for costs in the vicinity of 35-45% of the total amount of costs. For the CAC MS Davenport submitted that an appropriate order for costs against Dr Wislang would be at the upper level; 45% of the total costs of the prosecution and hearing of the charge. MS Davenport conceded that this would be higher than normal,
In the H~gh Court of New Zealand
No. 6
Judgment of W I I ~ J In H I R ~ Court
but suggested that the additional time spent by the Tribunal and the CAC in prosecution of the charge would make such an order appropriate.
9.7 AS far as the Tribunal is concerned, this matter should have been determined within a one day hearing. This was well- demonstrated by the fact that the resumed hearing was able to be completed in half a day leaving the Tribunal time to adjourn to deliberate and to resume the hearing to announce its decision. The Tribunal has no doubt that had Dr Wislang properly prepared and organised himself for the hearing of the charge, even in its amended form, the hearing could have been completed quite comfortably within the single day originally allowed. In the t t~gh Court of New Zealand
9.8 THE principles which apply to the exercise of the Medical NO. 6
Council's powers to make orders as to costs pursuant to the Judgment of W ~ l d J In Hlqh Court
1968 Act are equally applicable to the Tribunal's powers 21 June2001
under the 1995 Act. This principle was established by the Tribunal in Decision No. 1419713C.
9.9 JN Gurusinghe v Medical Council of New Zealand [l9891 NZLR 139 the appellant medical practitioner had been ordered to pay costs amounting to $20,000.00. This amount was approximately half of the actual expenses incurred. The fill Court of the High Court held that such a sum was not excessive and noted that the ordering of payment of costs was not in the nature of a penalty, but rather to enable the recovery of costs and expenses of the hearing.
9.10 N a previous appeal, also dealt with in the High Court, an order for costs of $50,000 being two-thirds of the actual costs incurred, was upheld; O'Connor v Preliminary Proceedings Committee (High Court, Administrative Decision, Wellington, 23/8/90 Jefferies J, CP280189). In that case as with Gurusinghe the orders made against the doctor prevented him from practising. Jefferies J in O'Connor, acknowledged that orders for costs in this type of proceedings will be substantial and commented that this should be known to any doctor to be SO.
9.1 1 HOWEVER, the Tribunal is also minded not to lose sight of the fact that the charge did not include any substantive complaint of misconduct in terms of Dr Wislang's clinical practice. Taking all of these matters into account including the fact that Dr Wislang advises that he has personally incurred considerable costs, the Tribunal is satisfied that an order that Dr Wislang pay 35% of the total relevant costs incurred is fair and appropriate.
[28] The Tribunal's decision covered other matters, including the reasons for the
suspension, censure and fine imposed, but they are not relevant to this proceeding.
[29] On 9 December the plaintiff appealed to the District Court against the
Tribunal's order in respect of costs only. The District Court heard that appeal on l1
April, and dismissed it in a decision delivered on 27 April 2000.
[30] The two month suspension imposed by the Tribunal expired on 11 January
In the Htgh Court of New Zealand
[31] On 7 February the plaintiff provided hrther information to the Council in ,,, , support of his application for a practising certificate. Judgment of W~ld J
In Htqh Court
21 June 2001
[32] On 2 March the Council advised the plaintiff that it proposed issuing a
practising certificate subject to two conditions, the second of which was that the
plaintiff nominated a general overseer who agreed to be his mentor.
[33] The plaintiff responded in detail on 29 March, including a request for
clarification from the Council.
[34] As a new practising year intervened, the plaintiff on 27 July made a fiesh
application for a practising certificate.
[35] On 10 August the Council held a hearing into the plaintiff S application. The
plaintiff made submissions both through counsel and in person.
[36] On 20 September the Council advised the plaintiff of its decision to issue him
with a practising certificate subject to the conditions:
[a] That he restrict his independent practice to hair transplants, and
[b] Nominate a general overseer who will agree to be his mentor.
[37] On 18 October the plaintiff issued the present proceeding seeking judicial
review.
The legislation
[38] The following provisions of the Act are particularly pertinent:
"3 Principal purpose
(1) The principal purpose of this Act is to protect the health and safety of members of the public by prescribing or providing for mechanisms to ensure that medical practitioners are competent to practise medicine.
(2) Without limiting the generality of subsection (1) of this section, In the H~gh Court
this Act seeks to attain its principal purpose by, among other of New Zealand
things,- --- No. 6
Judgment of W~ ld J
In H~qh Court
21 June2001
(b) Providing for the registration of medical practitioners, and the issue of annual practising certificates:
(e) Providing for the disciplining of medical practitioners:
9 Practice of medicine
No person shall practise 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.
109 Grounds on which medical practitioner may be disciplined
(2) For the purposes of subsection (1) of this section, a medical practitioner is guilty of professional misconduct if that medical practitioner,-
Being the holder of probationary registration, general registration, or vocational registration, practises medicine while not holding a current practising certificate.
110 Penalties
(1) In any case to which section 109 of this Act applies, the Tribunal may,-
(a) Subject to subsection (2) of this section, order that the name of the medical practitioner be removed from the register or any part of the register:
In the H~gh Court Of New Zealand
@) Order that the registration of the medical practitioner be suspended for a period not exceeding 12 months: NO. 6
Judgment of W~ld J In High Court
(c) Order that the medical practitioner may, for a period not 21 June 2001
exceeding 3 years, practise medicine only in accordance with such conditions as to employment, supervision, or otherwise as are specified in the order:
(d) Order that the medical practitioner be censured:
(e) Subject to subsections (3) and (4) of this section, order that the medical practitioner pay a fine not exceeding $20,000:
(f) Order that the medical practitioner pay part or all of the costs and expenses of and incidental to any or all of the following:
(i) Any investigation made by the Health and Disability Commissioner under the Health and Disability Commissioner Act 1994 in relation to the subject-matter of the charge:
(ii) Any inquiry made by a complaints assessment committee in relation to the subject-matter of the charge:
(iii) The prosecution of the charge by the Director of Proceedings or complaints assessment committee, as the case may be:
(iv) The hearing by the Tribunal.
(2) The Tribunal shall not make an order under subsection (l)(a) of this section ordering that the name of a medical practitioner be removed from the register or any part of the register, unless the Tribunal has found the medical practitioner-
(a) Guilty of disgraceful conduct in a professional respect; or
(b) Guilty of a disciplinary offence against paragraph (e) or paragraph (Q of section 109(1) of this Act.
(3) Where the Tribunal is dealing with any matter that constitutes an offence for which the medical practitioner has been convicted by a court, the Tribunal shall not impose a fine under subsection (l)(e) of this section.
(4) In determining whether or not to make an order under subsection (l)(e) of this section that a medical practitioner pay a fine in respect of any conduct of that medical practitioner, and in determining the amount of any such fine, the Tribunal shall, where damages have been awarded against the medical practitioner, in respect of that conduct, under section 57 of the Health and Disability In the High Court
of New Zealand Commissioner Act 1994, have regard to the amount of that award of --___ -
damages." NO. 6
Judgment of W~ld J In H~qh Court
[39] Whilst I need not set out ss 51-59 of the Act in full, they are also important 21 June2001
and involve a fbndamental change from the 1968 Act. Under S 52 the grant or
renewal of a practising certificate is not automatic. The Registrar must refer to the
Council any application where the practitioner has not practised medicine or held a
practising certificate within the immediately preceding three years. Upon such a
20 referral, the Council may only grant a practising certificate if satisfied that the
applicant practitioner is competent to practise medicine in accordance with that
practitioner's registration or any conditions imposed in the practising certificate.
1401 Sections 60-65 of the Act also need not be set out in full, but I will need to
refer to some of them. They contain the competence provisions of the Act.
First cause of action - Tribunal's suspension decision of 8 October 1999
[41] The plaintiff alleges that this first decision of the Tribunal contained
reviewable errors of law in that it was based on:
[a] The amended charge which could not validly have been laid.
[b] The proposition that a medical practitioner not legally represented
before the Tribunal demonstrated a lack of insight and judgment.
[c] The proposition that a medical practitioner who made an error of
statutory interpretation relating to the charges demonstrated a lack of
insight and judgment.
[42] Based on these errors the plaintiff seeks a declaration that the Tribunal's first
decision was invalid.
[43] For the Council and CAC Mr McClelland made an initial submission that this
relief is moot and futile. He pointed out that the interim suspension had expired In the H~gh C O U ~
when the Tribunal made its final decision with effect from 11 November. His 0fNewZealand
argument was that any remedy at this stage would be pointless and have no effect on NO. 6
l 0 Judgment of W~ld J
the plaintiff S registration or ability to practise medicine. ~n ~ ~ q h Court
21 June2001
[44] For Dr Wislang, Mr Taylor rejected this. First, as interim suppression under
S 104 is based on "the need to protect the health or safety of members of the public",
it permanently stigmatises a practitioner. His second point was that the Tribunal's
first and second decisions were tied together, both depending on the propositions that
Dr Wislang's lack of legal representation demonstrated a lack of judgment and that
the amended charge was an appropriate basis for making orders (the suspension
order in the first decision, and the costs order in the second). I incline to the view
that Mr McClelland is correct: now to declare a spent decision invalid is pointless.
And there is plenty of authority that the Court ought not to exercise its discretion to
qp make a declaratory order unless the declaration may be of some use: Turner v
Pickering [l9761 1 NZLR 129, 141 ; Maddever v Umawera School Board [l9931 2
N Z L R 478,502.
[45] However, as Mr Taylor submits the first decision influenced the second, and
possibly even the third, I consider the three errors alleged.
Amended charge
.., . I
[46] I deal first with the allegation that the Tribunal's order to $ispenif Dr ''1 ." r
[47] Dr Taylor's argument is not so much that the Tribunal relied on the amended
charge in making its decision, but that it did so notwithstanding that Dr Wislang had
already raised the invalidity of that charge. The complaint is that the Tribunal either
ignored Dr Wislang's views, thereby breaching natural justice, or dismissed them as
incorrect, thereby erring in law.
[48] Mr McClelland contended that was not correct, that the nub of the Tribunal's
concern was Dr Wislang's acceptance that he had been practising since 1994 without
a practising certificate, including treating patients and prescribing and administering In the Htgh Court
drugs. of New Zealand -
No. 6
Judgment of Wtld J
10 [49] I am unable to accept Dr Taylor's submission. It was not the amended [nHlqhCourt
21 June 2001 charge - the consideration that Dr Wislang now faced removal from the medical
register - that influenced the Tribunal in suspending Dr Wislang in the interim, but
Dr Wislang's ready acceptance that he had practised medicine, treating patients and
prescribing and administering drugs and medicines, for about four years without a
practising certificate. Those were the public health and safety concerns which led to
the interim suspension. It was not the potential penalty Dr Wislang faced that was
instrumental in the Tribunal suspending him in the interim, but the seriousness of
what he had admitted doing (practising for four years without a certificate) coupled
with his explanations ("my book-keeping was hopeless"; "it was neglect"; "it was an
2O absurdity. I can't altogether account for it." ,". . . I shouldn't have neglected it . . .").
\
Lack of legal representation
[50] The argument for Dr Wislang posed three questions: did the Tribunal
conclude that lack of legal representation demonstrated lack of insight and judgment
on Dr Wislang's part, if so is that sustainable as a matter of law and was it material
to the Tribunal's decision. Dr Taylor conceded that the Tribunal did not expressly
state that Dr Wislang's lack of legal representation demonstrated a lack of insight
and judgment.
[51] On 7 October the Tribunal was confronted with a practitioner who readily
conceded he had been practising medicine for the last four years without a
certificate, and gave the explanations to which I have referred. The charge he was
facing had been amended and the letter conveying it to him had expressly drawn his
attention to S 109(l)(f) (the letter actually, incorrectly, referred to "Section 109(f))
and the implications of this in terms of penalty. The letter suggested Dr Wislang
may wish to seek legal counsel. Despite that Dr Wislang appeared on 7 October
unaware that he now faced being struck off the register. It was the culmination of
those matters, but I judge primarily Dr Wislang's practising without a certificate,
which influenced the Tribunal in suspending him in the interim. The nub of the
Tribunal's concern was not the fact that he was not legally represented, but his In the H~gh Court
10 general professional disorganisation and his failure to grasp the seriousness of what --___ Of
he had admitted doing. I see no fault in this aspect of the Tribunal's decision. NO 6
Judgment of W I I ~ J
In H~qh Court
21 June 2001
Error of statutory interpretation
[52] Dr Taylor submitted that consideration of this error flowed from the two
earlier alleged. I agree. And I do not consider it requires much additional
consideration. Dr Taylor pointed out that when the Tribunal asked Dr Wislang
whether he pleaded guilty to the charge read at the start of the 7 October hearing i.e.
the amended charge, he replied "I entered that plea a long time ago". That
demonstrates one of the Tribunal's concerns: that Dr Wislang had entirely failed to
grasp the gravamen of the amended charge, indeed it suggests that he had simply
20 paid no attention to it. His evidence that he thought the amended charge merely
reflected a change in the legislation points in the same direction.
[53] 1 agree with Mr McClelland that it was not any misinterpretation by Dr
Wislang of the Act which concerned the Tribunal, but the matters I have already
several times referred to: practising for a number of years without a certificate as a
result of professional disorganisation and neglect coupled with a failure to appreciate
how serious that was.
[54] The three-pronged challenge to the Tribunal's 13 October decision rested on
Lord Radcliffe's well known passage in Edwards (Inspector of Taxes) v Bairstow
[l9561 AC 14 at 36:
"... it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law."
[55] I view this part of the argument for Dr Wislang as pedantic and unrealistic.
The Tribunal had before it a medical practitioner who freely accepted that, through
l0 neglect and disorganisation, he had practised medicine for the previous four years l
without a practising certificate. He had not appreciated that an amended charge sent I n the High Court of New Zealand
to him placed him in peril of being struck off the register. Indeed, he had either paidv--- No. 6
no attention to that amended charge or thought it did not alter matters. In those'udgmentof~lld~ In H I Q ~ court
circumstances, the Tribunal saw no alternative to adjourning the hearing. The 21 ~ u n e 2 0 0 1
arguments for Dr Wislang, and they are quite detailed, reduce themselves to a
submission that the Tribunal ought not to have taken any action in the interim.
Based on Edwards v Bairstow, Dr Taylor argued that a Tribunal, acting judicially
and properly instructed as to the law, could not have decided to suspend Dr Wislang
in the interim. I entirely reject that. Had the Tribunal appreciated, at the start of the
20 7 October hearing, that the amended charge was invalid, then I imagine it would
have exercised its powers (in clause 14 of the First Schedule to the Act) to amend the
charge back to its original form, required Dr Wislang again to plead to that charge
(he had earlier by letter indicated a plea of guilty) and proceeded with the hearing to
a determination. A Tribunal "properly instructed as to the relevant law" would have
appreciated the invalidity of the amended charge, and there is therefore an
artificiality in applying the Edwards v Bairstow test to the 7 October situation. But
in my view a Tribunal acting judicially but not appreciating the invalidity of the
charge, could not responsibly have done other than suspend Dr Wislang in the
interim.
36 [56] Dr Wislang's first cause of action - his challenge to the Tribunal's 13
October decision - fails in all respects.
Second cause of action - Tribunal's substantive decision of 10 December 1999
[57] Dr Wislang alleges five errors of law vitiate this decision of the Tribunal:
[a] Holding that a person who is not legally represented before the
Tribunal is imprudent and not sensible.
[b] Finding that Dr Wislang failed to make "any adequate preparation"
for the hearing was unsupported by any evidence andtor invalidated
by drawing on Dr Wislang's decision not to be legally represented.
[c] Holding that Dr Wislang was not a "medical practitioner" in terms of In of the New ~ ~ g h Zealand court
-- the Medicines Act 1981, the Misuse of Drugs Act 1975, and the ,,, , Medical Practitioners Act 1995. Judgment of W I I ~ J
In H~qh Court
21 June 2001
[d] Misdirecting itself as to its own reasons for re-amending the charge
against Dr Wislang.
[e] Error in its award of costs in that:
[i] It failed to remove from calculations the time and effort by all
relevant parties (the Tribunal and the CAC) in respect of the
amended charge.
[ii] The finding of a "deluge" of material between the hearings
was not supported by any evidence.
[iii] It was based in part on the erroneous conclusion that a medical
practitioner who is not legally represented had not given "any
20 adequate preparation" for a hearing.
Legal representation and inadequate preparation
[58 ] These alleged errors are in paragraphs 3.1 1 and 9.3 of the Tribunal's decision
(set out in paragraph [27] above). It is unnecessary to add to what I have already
said about these errors, save in relation to costs, which 1 will do in dealing below
with the award of costs.
Dr Wislang not a medical practitioner
[59] This alleged error is in paragraph 3.12 of the Tribunal's decision. That
criticised Dr Wislang for appearing not to have given any thought to the jeopardy in
which he placed pharmacists and drug companies who filled his prescriptions in the
belief that he was legally entitled to obtain drugs and medicines. Dr Taylor's ,,,, of New Zealand
submission was that, in each of the Medicines Act 1981, the Misuse of Drugs Act No. 6
1975 and the Medical Practitioners Act 1995 "medical practitioner" is defined as aJu,,,en, ,,,l,, , In Hlqh Court
I 0 person registered as a medical practitioner under the Medical Practitioners Act, and ,, ,,, Dr Wislang was so registered. Thus, by prescribing and obtaining drugs and
medicines, Dr Wislang was not putting pharmacists and drug companies in jeopardy.
I reject that argument. The scheme of the relevant Acts is to proscribe dealing in
(i.e. sale or supply of) drugs and medicines save by persons expressly authorised by
the Acts. Those persons include a "medical practitioner" defined as meaning a
person registered as a "medical practitioner" under the Medical Practitioners Act
1995. In the Medicines Act there is an initial reference to a "practitioner", but the
scheme of that Act is not materially different. The emphasis is on persons entitled to
practice medicine. For example, S 8 of the Misuse of Drugs Act 1975 exempts from
2* the ss 6 and 7 prohibitions upon dealing with, possessing and using controlled drugs:
". . . a medical practitioner . . . acting as such in the course of his or her practice . . . "
[60] In the Medical Practitioners Act 1995 the entitlement of a medical
practitioner to practise is determined, not just by registration, but by registration and
the holding of a current practising certificate: S 9 of the Act.
[61] Dr Taylor's interpretation entirely ignores S 9. That cannot be correct.
Prescribing and administering drugs and medicines is part of the practice of
medicine. Unarguably, the pharmacists and drug companies who filled Dr Wislang's
prescriptions or supplied him with medicines believed that he was entitled to practice
'30 medicine. Equally unarguably, in prescribing and obtaining drugs and medicines he
so held himself out. Dr Taylor7s interpretation would allow persons not entitled to
practice medicine (even though they might be registered medical practitioners) to
prescribe and obtain drugs and medicines. I do not interpret the Acts as having that
legislative intent.
Tribunal misdirecting itself as to its reasons for re-amending the charge
[62] The reasons given in paragraph 3.16 of the Tribunal's decision for amending
the charge do not accurately reflect those contained in its detailed minute of 4 In t h e ~ ~ ~ h ~ ~ ~ ~ ~
of New Zealand
November. This part of Dr Wislang's argument succeeds. Dr Taylor accepted that-----
its relevance was to the costs which the Tribunal ordered Dr Wislang to pay. No. 6
Judgment of Wtld J
1" High Court
21 June2001
10 Erroneous award of costs
[63] My reading of the Tribunal's decision is that it blamed Dr Wislang for not:
[a] Making at the start of the 7 October hearing the points he
subsequently made in his communications to the Tribunal between 1 1
October and 8 November i.e. primarily, that the amended charge was
invalid (para 9.3 of the decision).
[b] Being properly prepared and organised to meet the charge (even in its
amended form) on 7 October, so that "the hearing could have been \
completed quite comfortably within the single day originally
allowed" @ara 9.7).
20 [64] That allocation of blame fed into the Tribunal's award of costs, although it
took into account Dr Wislang's submission "that a large proportion of the total costs
incurred had occurred as a result of the CAC's amending the charge".
[65] I do not think that allocation of blame is fair. Dr Wislang came to the 7
October hearing ready to make submissions as to penalty in respect of the charge as
originally fiamed, to which by Ietter he had earlier pleaded guilty. The hearing went
off when it was found that he had not appreciated the gravamen of the amended
charge - that he was in peril of being struck off - and was not ready to deal with that.
I accept that he ought to have paid attention to that charge and ought at least to have
appreciated that it put him in jeopardy of being struck off. But beyond that I see
difficulties.
[66] If the Tribunal is blaming Dr Wislang for not raising the invalidity of the
amended charge at the start of the 7 October hearing, then I do not think that is fair.
The amended charge was laid by the CAC, upon the advice of its legal counsel. The
Chair of the Tribunal was a lawyer. When neither of them appreciated that the In the H~gh Court
amended charge was invalid, Dr Wislang (a layman) can hardly be criticised for not of NewZealand
10 appreciating the invalidity. --
No. 6
Judgment of W~ld J In H~qh Court
[67] If the Tribunal was contemplating that the hearing could and should have 2'
proceeded to a determination on 7 October, then that hearing was presumably of the
amended, invalid charge. That would result in determinations which must be treated
as invalid.
[68] Perhaps what the Tribunal is saying is that had a proper (i.e. valid) charge
been laid against Dr Wislang and had he pleaded guilty to it the disciplinary
proceeding could have been concluded in a day. But that is not what happened. A
valid charge was not laid against Dr Wislang (or rather it originally was, but was
then amended to an invalid charge, and had to be amended back again) and the
hearing did not take just one day. And I think that blame for the invalidity and the
consequent blow out in hearing time does not lie with Dr Wislang.
[69] Further, I do not think the Tribunal's decision acknowledges that the
invalidity was only detected and corrected as a result of Dr Wislang's submissions -
his series of communications which the Tribunal's decision described as a "deluge".
[70] Perhaps in acknowledgment of these difficulties, Mr McClelland submitted
that the appropriate way of correcting such errors was through appeal against the
Tribunal's costs order, initially under S 116 to the District Court, with a further right
of appeal under S 121 to this Court. Mr McClelland pointed out that Dr Wislang had
appealed to the District Court under S 116, and that that Court had dismissed his
appeal in its decision delivered on 27 April 2000. He pointed out that Dr Wislang
had not appealed Wher .
[71] Mr McClelland's submission goes to the heart of what judicial review is all
about. His argument is essentially that, if the Tribunal's costs decision was wrong in
point of law, then the remedy was appeal, not judicial review. He is right. 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: Fraser v State
Services Commission [l9841 1 NZLR 116 at 127 (CA). Ironically, rather the same In the H~gh Court
point is made by Speight J in Wislang v Medical Practitioners Disciplinary o f ~ e w ~ e a l a n d
l0 Committee & Ors [l9741 1 NZLR 29 at 44 (in which Dr Wislang, at a much earlier NO. 6
Judgment of W I I ~ J
stage in his career, challenged the medical disciplinary authority). ~n HICI~ Court
21 June 2001
[72] 1 accept Dr Taylor's submission that the Tribunal's award of costs is
erroneous. But Dr Taylor's complaints are not as to the manner in which the v---- - F ----,
Tribunal made its decision, but as to the correctness of the decision itself. He does ,--- - -.-C- --- - -- P -
not complain that Dr Wislang did not have a full and fair opportunity of making
submissions about costs, nor is any other complaint about the Tribunal's decision
making process in relation to costs advanced.
[73] Thus, Dr Wislang's challenge to the Tribunal's award of costs cannot, in this
application for judicial review, succeed.
20 Third cause of action - Council's decision of 20 September 2000 imposing conditions on Dr Wislang's annual practising certificate
Competence
[74] The Council's 20 September 2000 decision resolving to issue Dr Wislang
with an annual practising certificate subject to two conditions includes, in its
reasons: L - a ' > l . C/ -- 3;
/ \' , "4.3 A medical practitioner's competence includes not.'pnly
,,'L- 2
whether a doctor is practising safely and has an accept&1e i.,, \..? ' : ,
level of knowledge and skills (including procedures $nil F.$: i .;l>
, , 1 1 .: ' < .
$ 1 0 8 29 1 ,
communication) but also the doctor's attitudes and judgement (I enclose a competence review booklet distributed by the Medical Council for your reference)."
[75] Having taken me exhaustively through every provision in the Act referring or
relating to competence, Dr Taylor submitted that it was limited to clinical
competence.
[76] I do not accept that submission. For example, a doctor who had the attitude - . ~ - -
that all wounds and illnesses should be left to heal or cure naturally, untreated, would In the H~gh Court
not be competent to practise medicine. A doctor who lacked any ability to judge or 01 New Zealand
-- 10 assess, would be equally incompetent. Section 62 of the Act, for the purpose of NO.^
Judgment of W~ld J examining or improving the competence of medical practitioners to practise , , , H , ~ ~ Court
21 June2001 medicine, empowers the Council to require a medical practitioner holding or
applying for a practising certificate to complete a competence programme involving
examination, training, practical experience, instruction, examination of clinical
records or:
"(0 Anything else that the Council considers appropriate."
[77] Whilst I accept Dr Taylor's submission that anything prescribed by the
Council would always be subject to review by the Court in terms of its
reasonableness, that provision leaves the definition and bounds of competence very
20 much to the Council. And as the Council is the governing body of the medical
profession that is entirely appropriate. This first aspect of Dr Wislang's challenge to
the Council's decision fails.
Reliance on Tribunal 'S decision
1781 I have already dismissed the challenges to those parts of the Tribunal's
decision referred to and relied upon by the Council, and I therefore see no
reviewable error in the Council taking into account those parts of the Tribunal's
decision.
Dr Wislang 'S lack of overall ability to organise his affairs
[79] This challenge focuses on the following paragraph in the Council's reasons:
"4.7 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."
[80] Dr Taylor made detailed submissions about this. First, he submitted that in
10 none of the material the Council said it relied upon was there any reference to In the High Court
notification of change of address. Secondly, he submitted that Dr Wislang had OfNewZea'and - notified a change of address only once, by telephone on 26 April 1993, and that the
Judgment of wild J
Council had thereafter misinterpreted his writing of letters to the Council from a 21 June 2001
different address as constituting a formal notification of change of address. Thirdly,
he submitted that Dr Wislang had not had any notice that an adverse finding might
be made against him because he had not paid the costs awarded against him by the
Tribunal in December 2000. Lastly, he submitted that no reasonable Council could
conclude that, for a medical practitioner to apply for a practising certificate without
having a proposed place of practice, indicated an overall lack of organisational
Ilo ability.
[81] Without descending into the minutiae of the argument supporting these
submissions, I consider that there may well be something in some of them, for
instance, in Dr Taylor's second submission about notification of change of address.
The evidence is that, by telephone on 26 April 1993, Dr Wislang formally notified a
change of professional address to 38 Megarry Avenue, Manly. But thereafter he
wrote to the Council, and advertised his professional services, from 58 Symonds St,
Auckland. The Council on 21 May 1993, when issuing him with a provisional
certificate of registration giving his address as 58 Symonds St, requested him to
return an enclosed postcard if his address differed from 58 Symonds St. Nothing
30 came back from Dr Wislang. Strictly, Dr Wislang may be on good ground in
relation to notification of his professional address.
[82] But I do not intend descending into the detail of the argument on this aspect.
Even if none of the reasons mentioned by the Council in paragraph 4.7 of its decision
is valid, there existed plenty of material justifying the Council in imposing the
condition that Dr Wislang nominate a general overseer who agreed to be his
professional mentor. That material is summarised in paragraphs 4.4 to 4.6 of the
Council's decision. I regard the three matters referred to by the Council in paragraph
4.7 as make weights, and see it as significant that they were the last the Council
referred to.
[83] Dr Taylor rightly warned me of the dangers of leaving a decision standing
when part of its basis had been exposed as erroneous. He supported this by In the Htgh Court
contrasting the approaches of the Court of Appeal and Privy Council in Royal o f ~ e w z e a ~ a ~ d -- 10 Australasian College of Surgeons v Phipps [l9991 3 NZLR 1 and Phipps v Royal NO. 6
Judgment of W~ld J Australasian College of Surgeons [2000] 2 NZLR 5 13 respectively. I am alive to ulqh Court
21 June 2001 that danger. But I am not in doubt that the two conditions imposed by the Council
on Dr Wislang's practising certificate were well justified without any reliance upon
the matters referred to in paragraph 4.7 of its decision.
[84] It is thus unnecessary for me to consider Mr McClelland's submission that
the remedy sought by Dr Wislang in his third cause of action was futile or academic.
That was because the condition objected to by Dr Wislang would anyway have been
imposed on him pursuant to S 20(2) of the Act (because he had not held a valid
practising certificate for five consecutive years prior to July 1996), and further
20 because oversight for all practitioners pursuant to S 20 becomes mandatory in a few
days time, from l July 2001.
Discretion
[85] As none of Dr Wislang's three causes of action succeeds, no decision is
required as to whether the discretionary remedies sought should be granted, and if so
in what way. I add that, even had all causes of action succeeded, I would have been
most reluctant to quash all parts of the Tribunal's two decisions and the Council's
one decision, save for the censure imposed by the Tribunal and the first condition of
practice (which Dr Wislang did not object to) imposed by the Council. Dr Taylor
submitted that such a result was a fair outcome in all the circumstances. I would not
30 have been able to reconcile that with his submission that the decisions of the
Tribunal and Council were marred by numerous and cumulative errors of law, or
with the approach of the Privy Council in Phipps. I am not able to see how vitiated
findings and decisions of the Tribunal and Council could be separated from other
findings and decisions so that the outcome advocated by Dr Taylor represented a fair
result. I h n k quashing all the findings and decisions of the Tribunal and Council
would have been unavoidable, leaving the whole matter to have been gone into
afresh.
Result In the Htgh Court of New Zealand
NO. 6
[86] None of Dr Wislang's three causes of action has succeeded. His appli~ation,,,~,~,~ , for judicial review is accordingly dismissed.
Costs
[87] In the normal course the first and third defendants would be entitled to their
costs against Dr Wislang. However, I reserve costs in the hope that my unease over
the Tribunal's award of costs against Dr Wislang might be accommodated in an
agreement as to the costs of this proceeding, perhaps that there should be no order.
Delivered at 3.40 pm on 2 1" June 2001
Solicitors
Hanning Connor, Wellington for the Plaintiff
KPMG Legal, Wellington for the First and Third Defendants
20 DFC Fuller, Wellington for the Second Defendant
In H~qh Court
21 June 2001
--
In the Court of Appeal of New Zealand -------------------
No. 7 Notice of Appeal of Miles
Roger Wislang to Court Of ADDeal
19 July 2001 IN THE COURT OF APPEAL Of' NEW ZEALAND
. I' ..,T qFAPPlW
1 8 JUL 2001 I
-Jml'oN *
P1 TNE MAITER of tbc Medial Pncdtianets Act 1995
AM) MEDICAL COUNCIX, OF NEW ZEWAND, at Wdlfngton f rst Rsrpondeat
AND MEDIChl, PRACTmONmS DISCIPLJNARY TRIBUNAL, at Welliagton Seoond Rupond~~c
AND CObdMmrS A m ! C O M M T r n OF 'II.1E! MEDICAL WUNCZI, OF NEW ZEATAND at
. $, 5Q?%, wolthaetda Tw-t
NOTICE OF APPEAL
IiANNING CONNOR Soliaton
(P J Conna) P 0 Box 10376 DX SP 23% Phone 499 3280 Fu: 499 3308
wI3uNGTON tinail ~ C O M ~ C O . ~
Counsel G D S TAYLOR
W t a r P 0 Bou 5294 DX SP22!X0
Phone: 495 3451 Fax 495 3458 emaik pham.taylor@johwrbndco.nz
TAKBoodcetbrtaa dry the day of 2001
at mn/pmrt Wdbqtanottr uxm thc#rfirtrcCaMd rmy be hard the ~ t o l i n m d v c c h e ~ o a r p p e r l ~ t h c a r h d c o f t h t l o d l p n e n t o f t t r e H j e ) r
Gmrt @CII by HL Honow Justice Wild drted 21 Junc 2001 at WdIiqtm upaa the
ppmLttytrbadrrktnia~~~~~~~lj l lEICtdinlrat.
In the Courl of Appeal of New
Zealand
No. 7
Notlce of Appeal of Miles Roger Wtslang to Court Of A ~ o e a l
19 July 2001
THIS Strtanent of U& ir bled by PE1ER JMlES CONNOR, Solhitot for the Appdlnt, whare rdcbnrr bw actvice ic at drc ofEiosr of Hnnnin8 Coaaa, l ed 14.70 The Tmm, Wdiagton.
Documentr for raricc on the abenmed Appdbt mry be lefi at (hat ddzru br ~ c c a r ~ b e -
(a) Pasted to the &m at PO l3tx 10376, W e b @ m , W
@) SA with the mlicitaa at a Document hchmgc fix diroct1oa to TIX . Box SP 23544, Wdlurgton; or
(c) Tnnunitted LO the soliamr by frcrLn3~ to FficsimiIc NO 04-49!) 3308; Ot
(d) & m k d to h e solicitor at h a n n i o g . m n e c ~ n z .
IN THE COURT OF APPEAL OF NEW ZEALAND
In the Court of Appeal of New
Zealand .I----------------.
No. 8 CA NO. 174101 Points on Appeal of
Miles Roger Wislanq
1 October 2001 BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
NOTICE OF POINTS ON APPEAL 1 October 2001
HANNING ,CONNOR Solicitors
WELLINGTON (Mr P J Connor)
P 0 BOX 10-376 DX SP23544 Phone: (04) 499-3280 Fax: (04) 499-3308
Email: p.connor@hanningconnor.co.nz F 1036001 -PO:\
TAKE NOTICE that the points to be argued by the Appellant on appeal in this
matter are:
1. His Honour erred at paragraphs 71 to 73 of his judgment in holding that the
Appellant's challenge to the Tribunal's award of costs could not succeed on
judicial review since, though the decision as to costs has been held to be
wrong in law by being based on an invalid amended charge, the error was
not amenable to judicial review as it related to the correctness in law of a
decision not to questions of natural justice or procedural failure. An In the Court of Appeal of New
administrative decision made in error of law, even as to its merits, is subject Zealand
to judicial review. -
No. 8
Points on Appeal of Moles Roger Woslanq
His Honour erred in paragraph 55 of his judgment in holding that, although 1 October 2001
a Tribunal properly instructed as to the relevant law would have appreciated
the invalidity of the amended charge, a Tribunal not appreciating the
invalidity of the charge (as His Honour held was the case) still acted lawfully
on the invalid charge. A Tribunal that does not properly instruct itself as to
the law makes an error of law in acting on that misdirection.
3. His Honour erred in paragraph 82 of his judgment
(a) in holding that even if none of the reasons advanced by the First
Respondent in paragraph 4.7 of its decision were valid, then the
decision was still lawful because there existed "plenty 07 material
justifying" the decision made, and
(b) in failing to hold that the reasons stated in paragraph 4.7 of the First
Respondent's decision were in error of law.
4. His Honour erred in paragraph 51 of his judgment (repeated at paragraph
58) in holding that, in relation to the amended charge on which the Appellant
had been invited to seek legal counsel, that, "The nub of the Tribunal's r <- . concern was not the fact that he was not legally represented,A$,&'!!. MS i t -
, :< ,,' failure to grasp the seriousness of what he had admitted doing::' Fiveq$%is.. + $ 2
, "c ' ,f i \.
\ 'G. a m& "%+,L> ;{',
%',* Yz*; a
. h 116
Honour's holding elsewhere in his judgment that the amended charge was
invalid, the passage quoted is
(a) inconsistent with the facts identified by His Honour that it was not the
amended charge (to which this paragraph of the judgment was
connected), but the original charge which the Appellant had admitted.
(b) in failing to hold that the Appellant's lack of legal representation was a
material factor in the decision to suspend. In the Court of Appeal of New
Zealand
4. His Honour erred in paragraph 49 of his judgment (repeated at paragraph
58) in holding that the Second Respondent was not "influenced" in
suspending the Appellant by the amended charge which His Honour held
elsewhere in his judgment to be invalid.
5. His Honour erred in paragraph 76 of his judgment in that
(a) he misconstrued the meaning of "competencen by extending it to
matters that did not relate to matters that make the diagnosis,
treatment and procedures undertaken by a medical practitioner
clinically competent,
(b) holding that the Appellant's admitted incompetence in his administrative
systems made him "incompetent" in terms of section 62 of the Medical
Practitioners Act 1995, and
(c) failing to undertake the task which is exclusively that of the Court,
namely, defining the meaning of words used in statutes.
6. His Honour erred in paragraph 61 of his judgment in holding that S 9 of the
Medical Practitioners Act 1995 was relevant to the holding of the Second
Respondent in paragraph 3.1 2 of its decision, namely, that the actions of the
Appellant placed drug companies and pharmacists in "jeopardyn. As a
matter of law the Appellant's actions placed no drug company or pharmacist
in any jeopardy by reason of the fact that the Appellant did not hold a
No. 8
Po~nts on Appeal of Mlles Roqer W~slanq
1 October 2001
practising certificate at the time he ordered prescription drugs or provided
prescriptions to be filled.
7. His Honour erred in paragraph 85 of his judgment by refusing to follow
decisions of the Privy Council and Court of Appeal in Phipps v Royal
Australasian College of Surgeons [l 9991 3 NZLR 1 (CA), [2000] 2 NZLR 51 3
(PC) as to severance of parts of their decision challenged.
DATED at Wellington this day of October 2001. In the Court of Appeal of New
Zealand
No. 8
Polnts on Appeal of M~les Roger W~slanq
1 October 2001
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . ,
G D S Taylor
Counsel for the Appellant
TO: The Registrar of the Court of Appeal.
AND TO: The abovenamed First, Second and Third Respondents.
IN THE COURT OF APPEAL OF NEW ZEALAND
Hearing:
Coram:
In the Court of Appeal of New
Zealand ------_I----.
No. 9 Judgment of
Blanchard J. in 4 March 2002
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
19 and 20 February 2002
Richardson P Blanchard J Tipping J
Appearances: G D S Taylor for Appellant M F McClelland and N J Russell for First and Third Respondents B A Corkill for Second Respondent (leave to withdraw)
Judgment: 4 March 2002
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
[ l ] Dr Wislang appeal+ against the dismissal by the High Court of his application
for judicial review of decisions:
[a] On 7 October 1999 by the Medical Practitioners Disciplinary Tribunal
(the Tribunal) acting under S 104(l )(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);
[b] On 1 1 November 1999 by the Tribunal acting under S 1 lO(1) of the In the Court of Appeal of New
Act to suspend his registration for two months from that date and to ------I_
impose a fine and costs (the substantive decision); and NO. 9
Judgment of Blanchard J In Court
Of Ao~ea l
[c] On 20 September 2000 by the Medical Council of New Zealand (the ,March 2002
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(l)(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) Andlor he carried on the business of practice as a hair transplant surgeon without holding a current practising certificate.
Being professional misconduct.
/ O In the Court of
In a letter to the Tribunal Dr Wislang formally admitted this charge. It is common AppealofNew Zealand
ground that his practising certificate lapsed at the end of March 1994 and that----- No. 9
without a certificate he practiced hair transplant surgery in New Zealand from Judgmentof Blanchard J In Coun
August 1994 until April 1998. Dr Wislang sought the opportunity of making O f A D ~ e a l
4 March 2002
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; 1
(b) The substance of the ground believed to exist, and the particulars of the charge are:
"The Complaints Assessment Committee, pursuant to Section 93(l)(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) Andlor 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 andlor 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 s l1 O(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(l)(f)). The original charge had not exposed ~ p ~ e ~ ~ ~ ~ ~ ~
Zealand Dr Wislang to the peril of removal of his name from the register. In a letter --------.
No. 9 accompanying the notification of the amended charge, the Tribunal's secretary drew
of Blanchard J In Court
attention to the incorporation of s109(l)(f), saying that Dr Wislang would need to o f A ~ ~ e a l
4 March 2002 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(l)(f), i.e that it was reverting to the
30 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 1 1 November);
Fining him $8,500; and In the Court of Appeal of New
Zealand
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). Judgment of
Blanchard J, in Court
4 March 2002
[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.
[l01 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.
[ l l ] 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 In the C O U ~ of Appeal of New
Zealand
[l21 Dr Wislang challenged the interim suspension order on two grounds. First he No. 9
said that the Tribunal had no jurisdiction to make any such order because at the time Judgment of Blanchard J ~n Court
it was made there was no valid charge against him. Section 104 empowers the of A~pea l
4 March 2002
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.
[l31 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(l)(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.
[l41 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 tjndgg of
invalidity. For the respondents, Mr McClelland explained that the;$w had 6een \
taken that Wild J had not actually made such a finding. Lest that Giew l i n , be,*g,.he \ I ?.$ + < ,
sought special leave to cross-appeal, which we granted. , . , . p : pih. , V.,. . ;{ \*$ qdi " t. ,+:;
h . d t . h ? ; ' * ,
6 ' * ,A*
124
[l51 We have no doubt that the Tribunal could invoke s104. A notice had been
earlier given under slO3 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.
[l61 So far as the second point is concerned, we consider, like Wild J, that it has In the Court of
no merit. In its reasons for making the interim suspension order, the Tribunal A P ~ e ~ , ~ ~ ~
--W-----
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,,,2~~J"~~dOUrt
of A o ~ e a l 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(l)(f).
[l71 The Tribunal also referred to Dr Wislang7s 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.
[ l 81 The Tribunal recorded its deternlination 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 andor 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.
[l91 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 ' n t h e C ~ ~ f i ~ f Appeal of New
Zealand interim suspension order. We regard as completely artificial the argument that the ,._- -
No. 9 Tribunal was relying on Dr Wislang's misunderstanding of the amended charge as a
Judgment of Blanchard J In Court
reason for making its decision and thus was influenced by the alleged invalidity. It ofAppeal
is evident from reading the decision as a whole that it was really the other factors 4 March 2002
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 ~~~a~~~~~
Zealand expressed, the interim order had been made on an improper basis, it could not be said
No. 9 that any impropriety carried through into and infected the final order. The Tribunal
Judgment of Blanchard J In Court
gave separate reasons for ordering suspension: of AD~eal
4 March 2002
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 andlor 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.
In the Court of Appeal of New
Zealand
[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
20 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.
No. 9
Judgment of Blanchard J In Court
Of A ~ p e a l
4 March 2002
[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
In the Court of to a person registered under this Act who is practising in accordance Appeal or New
with any conditions of his or her registration or practising certificate. Zealand --------- No. 9
So when the Medicines Act prohibits sale by retail of any prescription r n e d i ~ i n e , , ~ ~ ~ $ ~ ~ ~ 5 , ~ ~ ~ ~ ~ of Appeal
otherwise than under a prescription given by a "practitioner" (s18)(2)), that is a 4March2002
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 In the Court of
decisions in relation to those matters set aside, but accepts that the quantum would Appealof New Zealand
then have to be re-fixed. It is said that the Tribunal took into account irrelevant ------- No. 9
considerations in deciding how much to fine Dr Wislang and how much to require Judgmentof Blanchard J ~n Court
him to pay in costs. of A ~ ~ e a l
[31] Judicial review is discretionary and will be refused when the remedy of
appeal is more appropriate (Fraser v Robertson [l9911 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 [l9731 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(l)(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
4 March 2002
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 pur excellence the stuff of general
appeals, not judicial review. Still less is it arguable that having had and taken his In the Court of
opportunity of appealing, Dr Wislang should now be permitted to contest such AP~;~l;~,"ew
--m
matters by an alternative legal process. No. 9
Judgment of Blanchard J In Court
[33] Mr Taylor placed at the forefront of his argument a criticism of a sentence in OfADDea'
4 March 2002
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 Stute Services Commission [ l 9841
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 hot 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
10 acceptable level of knowledge and skills (including procedures and communication) In the Court of
but also the doctor's attitudes and judgment: Appeal of New Zealand
During the period April 1994 to April 1998, notwithstanding that you NO. 9
were aware that you had not obtained a practising certificate you Judgment of Blanchard J ~n Court
carried on your medical practice. of A ~ ~ e a l
4 March 2002
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 a ~ d ,, - . communication and your attitudes and judgement is not of'%n - I - acceptable level and it felt that it could only be satisfied that yoy were ,.* competent to practise if the Council imposed conditions on your &PC" :'-)
. V ,
and that you complied with those conditions. +-,TT , I '. "$ ! , ? -- + :. ,
l
"a..?.' ", ", b , *
14 <. 132
[37] In paragraph 7 and 8 of the submissions of counsel referred to by the Council
there had been reference to Dr Wislang's:
(a) Administrative organisational failure in not obtaining annual practising certificates from 1994 to 1998;
(b) 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
(c) Unawareness of the representation in law that he held a current In the Court of practising certificate when he treated patients and dealt with A,,ea,o,,ew
wholesale and retail pharmacists. Zealand ------ No. 9
Dr Wislang had accepted the correctness of these matters and their relevance to his ~udgment of Blanchard J In Court
application for a practising certificate. of Ao~eal
4 March 2002
[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 andor 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 " (Q Anything
else that the Council considers appropriate".
In the Court of
[40] In Ghosh v General Medical Council [2001] 1 WLR 191 5, 1923 the Privy Appeal of ~ e w Zealand
Council said that it would accord appropriate respect for the professional body's '----'--- No. 9
judgment on the measures necessary to maintain professional standards and provide Judgment of Blanchard J In Court
adequate protection for the public. The same approach is appropriate under the New of Ao~eal
4 March 2002
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:
(a) 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
(b) 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 In the Court of
determine competence, namely (a) the matter of concern must relate to public health AppealofNew Zealand
and safety and (b) that the Council's determination and the action taken in -------- No. 9
consequence must not be unreasonable in the circumstances. Judgment of Blanchard J In Court
of A ~ o e a l
4 March 2002
[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 s.54.
Result
[44] The appeal is dismissed. The appellant must pay the costs of the first and
third respondents in the sum of $1 0,000 together with any reasonable disbursements,
which are to be fixed if necessary by the Registrar.
Solicitors: Hanning Connor, Wellington for Appellant KPMG, Wellington for First and Third Respondents
In the Court of Appeal of New
Zealand
No. 9
Judgment of Elanchard J In Court
of A~oea l
4 March 2002
In the Court of Appeal of New @
Zealand
IN THE COURT OF APPEAL OF NEW ZEALAND No. 10
Notice of Motion for CA tqo. 174/01 Conditional Leave
to Appeal to Privy Council
25 March 2002 UNDER the Medical Practitioners Act 1995
AND the Judicature Amendment Act 1972
AND the Privy Council (Judicial Committee) Rules Notice 1973
IN THE MATTER OF a decision, dated 4 March 2002, of the Court of Appeal
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
NOTICE OF MOTION FOR CONDITIONAL LEAVE TO APPEAL TO HER MAJESTY IN COUNCIL
~ a t e d Z ! March 2002
HANNING CONNOR Solicitors
WELLINGTON (Mr P J Connor)
P 0 BOX 10-376 DX SP23544 Phone: (04) 499-3280 Fax: (04) 499-3308 Email: p.connor@hanninqconnor.co.nz
Take notice that on the day of 2002
at amlpm , or as soon thereafter as Counsel may be heard, the
appellant will move the Court at Wellington on appeal to Her Majesty's Privy
Council against the whole of the judgment, dated 4 March 2002, of their
Honours, Richardson P, and Blanchard and Tipping JJ, on the grounds that
the decision is erroneous in fact and in law.
In the Court of Appeal of New
Zealand
No. 10
Notice of Mollon for Cond~tlonal Leave to
Appeal to Pr~vy Counc~l
25 March 2002
Dated at Auckland this/ day of March 2002.
'Ad-
Miles Roger Wislang /
Appellant
TO the Court of Appeal
AND TO the First, Second and Third Respondents.
This notice of appeal is filed by the appellant, MILES ROGER WISLANG, whose address for service is at the offices of Hanning Connor, Level 14, 17 The Terrace, Wellington.
In the Court of Appeal of New
Zealand ---------3--
No. l 1
IN THE COURT OF APPEAL OF NEW ZEALAND Affidavit Miles Wislang in support 01 CA No' 74101 Application for Conditional Leave to
Appeal to Privy
UNDER the Medical Practitioners Act 1995 Council
22 April 2002
AND the ~ud ica tu re Amendment Act 1972
AND the Privy Council (Judicial Committee) Rules Notice 1973
IN THE MATTER OF a decision, dated 4 March 2002, of the Court of Appeal
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
AFFIDAVIT OF APPELLANT IN SUPPORT OF APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO
HER MAJESTY IN COUNCIL
Dated 22 April 2002
HANNING CONNOR Solicitors WELLINGTON
(Mr P J Connor) P 0 BOX 10-376 DX SP23544
Phone: (04) 499-3280 Fax: (04) 499-3308
I, MILES ROGER WISLANG, un-employed registered medical practitioner, of 38
Glengarry Avenue, Manly, Auckland, swear
1. I am the applicant in these proceedings for conditional leave to appeal to the
Privy Council.
2. Within a few weeks of my being adjudicated bankrupt on 1 April 1998, 1 vas
barred from private surgical practice by the Official Assignee ; since which I In the Court of Appeal of New
have been in receipt of a WlNZ benefit, for and along with my family, of my Zealand
non-earing wife and now 10 children ; all of whom reside with us. NO. 11
Affidavit M~les Wlslang In support of
Appllcat~on for Cond~t~onal Leave to
Appeal to Prlvy
3. In August 1999 1 applied in the usual manner, with fee fully pre-paid by Council
22 Aprll2002
WINZ, to the Medical Council for a practising certficate to facllitate my re-
applying for the Official Assignee's permission for me to recommence
earning in private surgical practice ; which permission the Official Assignee
was prepared to consider granting subject to my obtaining a practising
certificate.
4. The Medical Council, through its Registrar, in August 1999 refused (as I am
advised, contrary to law) to process my application for a practising certificate ;
claiming that because of the disciplinary proceedings (subject of this appeal)
then pending against me, the Medical Council could or should not process my
application then.
5. In the period of some two months between my applying for a practising
certificate and the date of first hearing of the said disciplinary proceedings,
the Medical Council made no move to, and in fact did not, suspend my
general medical registration or place any conditions upon it.
6 My very long-standing and only surgical practrce was In a surgical sub- -- . ;L*-i ,c' - . !L":
speaalty, namely hair transplantation, wh~ch is not pract~sed in in pub& -* - - --"T~...l *< * -',
) <
hosp~tals In New Zealand , and, in the period August 1999 to the pfe'esept,.,,?~~., , * Lv;%,) -J there were are are no qualif~ed New Zealand resident hair transplant , :, , ,+,*> r ' \
$'<G., I l !
surgeons by whom I could be employed, let alone superv~sed ; there be~uS) ha. , ; 4 . i'
specialist or vocational registration established by the Medical Council for this
so-called sub-specialty.
7. 1 am therefore unemployable as a transplant surgeon in New Zealand.in any
way except as by myself,
8. The Medical Council also requires, illegally I believe, that medical school
teaching by non-clinical but medical human anatomists, also requires a
practising certificate. In the Court of Appeal of New
Zealand
9. Both of the heads of departments of Anatomy in the two New Zealand p-------
NO. l 1 medical schools, in Otago and Auckland, have (by letters to me) denied the
A~ldavltMl,es W~slang In support of
necessity for a teacher of human anatomy In therr schools to hold a practlslng Appllcatlonfor Cond~t~onal Leave to
certificate for that purpose. Further, the non-cl~nical Anatomy teaching staff of Appeal to Privy Counc~l
both medical schools consists mainly of non-medical university graduates; 22 April 2002
and actually include no registered medical practitioners at all. These facts are
attested to by the exhibits marked MW 01, MW 02, MW 03 and MW 04 which
are affixed hereto ; which include Anatomy departmental teaching Staff lists
from the medical schools of the universities Otago and Auckland for the year
2001.
10. 1 therefore regard the requirement of the Medical Council for me to hold a
practising certificate in order for me to teach human Anatomy in medical
schools in New Zealand to be improper, and deprivatory of my only other
presently sustainable and reasonable source of income ; and'possibly
intimidatory and oppressively restrictive ; perhaps intentionally on the part of
the Medical Council.
11. The Medical Council has been aware, at all material times, that the reason for
my persisting unemployment and impecuniosity has been not only that it
improperly failed to issue me with a practising certificate in August 1999, but
also that, following the Decision and fine and costs Orders against me by the
Medical Practitioner's Disciplinary Tribunal, it required the said fine and---in
my well-known circumstances---huge costs to be paid before it would issue
me with a practising certifcate at all ; any other applicable conditions aside.
12. The present proceedings of judicial review, up to my appeal to this Court, has
been funded by family members overseas who were cognisant of and highly
concerned about the Tribunal's permanently publishing, by posting on its
national and internationally simply accessible internet website, as part of its
its finding on my case, that as a doctor I (( lack insight and judgment and
ability to organise(my) affairs D. This international advertising, on the
Tribunal's website, of this particular finding, persists until now.
13. With respect to my professional employability internationally, in any capacity In the Court of at all, I and my extended family, and many colleagues both in New Zealand
Zealand and overseas are appalled that the Medical Council, within a very short time ---------
No. 11 of the Tribunal's publishing its decision, saw fit to go behind my back and
Aft~davlt M~les Wlslang In Support of
falsely inform (by bulk fax) all of the many medical registration authorities in Appl~,t~on Cond~t~onal Leave to
Australia, South Africa, Great Britain and Ireland, that the Tribunal had Appeal to privy Counc~l
suspended my registration (from 11 November 1999-the date of the 22 Apr1l2002
Tribunal's interim decision) (( in relation to a charge of disgraceful
conduct in a professional respect ; and that without so much as in any
way indicating in the faxes what professional or other matter the alleged
charge related to.
14. The Medical Council's said bulk fax concerning me is dated 13 December
1999--- that is 3 days following the Tribunal's handing down of its
Supplementary (final) Decision---and is annexed hereto in true copy as exhibit
MW 05. It was supplied to me in copy upon my requesting it, perforce many
months afterwards, under the Privacy Act, following my coming to know of
its existence through the discovery process in these proceedings of judicial
review. The letter from the Medical Council under cover of which the copy of
the bulk fax was supplied to me is dated 12 November 2001 and is annexed
hereto in true copy as exhibit MW 06.
15. 1 believe that I have been gravely damaged professionally by this orginally
secret and very serious misinforming against me by the Medical Council to
the multitudinous overseas medical registration bodies in jurisdictions where,
as an alternative to New Zealand, I might well have sought and taken medical
professional employment ; but concerning which I believe I will need have to
take drastic remedial steps to repair my professional reputation to regain or
reasonably assure my employability overseas. . 'l
16. For many months have been in the process of repeated inquiry to overseas
registration bodies, especially the General Medical Council of Great Britain
(where I am patrial), concerning the effects of the New Zealand Medical
Council's misinforming against me, but have not as yet received any reply to
my faxes, letters or telephone calls concerning this matter.
17. The New Zealand Medical Council have not informed me of any steps it might
take or has taken to mitigate the grave prejudicing of my medical professional In the Court of
and academic employability which it has inflicted by its secret misinforming Appeal of New Zealand
against me to the 11 offshore medical registration bodies by its fax of 13
December 1999.
SWORN by
Miles Roger Wislang
at Whangaparaoa
th~s 22nd day of April 2002 >
before me
NO. l 1
Afftdavlt Mtles W~slang In support of
Appl~cat~on for Cond~t~onal Leave to
Appeal to Prlvy Counc~l
In the Court of Appeal of New
Zealand ---U
No. 12
Memorandum Miles
IN THE COURT OF APPEAL OF NEW ZEALAND Wislang on Application for
CA No- 74'01 Conditional Leave
23 April 2002
UNDER the Medical Practitioners Act 1995
AND the Judicature Amendment Act 1972
AND the Privy Council (Judicial Committee) Rules Notice 1973
IN THE MATTER OF a decision, dated 4 March 2002, of the Court of Appeal
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
MEMORANDUM OF APPELLANT ON APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO
HER MAJESTY IN COUNCIL
Dated 23rd April 2002
HANNING CONNOR Solicitors WELLINGTON
(Mr P J Connor) P 0 BOX 10-376 DX SP23544
Phone: (04) 499-3280 Fax: (04) 499-3308
MAY IT PLEASE THE COURT
By this memorandum, leave is respectfully sought for the Court to admit
an affidavit, dated 22 April 2002, filed by the applicant in support of his
application for conditional leave to appeal to the Privy Council ;
Upon the Grounds submitted now, that ;
l. The Courts understanding of the present employment and
financial situation of the applicant, and future employability, as
relevant to this application, requires to be based on up-to-date
evidence not yet before the Court ; as, it is submitted, both relate
to the exercise of the Court's discretion to grant leave under Rule
2(b) ; and to the matter of the conditions of leave should it be
granted.
2. The Court's understanding of the applicant's medical professional
and academic status, nationally and internationally, as they have
been potentially gravely affected by misinforming against the
applicant by the Medical Council, it is submitted requires to be
taken account of as a considerable issue going to
(( impedance )) ; and therefore to the exercise, again under Rule
2(b), of the Court's discretion on this application.
3. The affidavit whose admission is now sought attests to that
misinforming by the Medical Council ; and further, to the issue of
the persisting, apparently permanent advertising of the whole
decision, with reasosns, (as a purported Publication of Order
under s138 of the Medical Practitioners Act) by the Medical
Practitioners Disciplinary Tribunal on its internet web-site ;
conveying explicitly that the applicant is incompetent as a doctor
by reason of lack of insight and judgment and ability to organise
In the Court of Appeal of New
Zealand
No. 12
Memorandum M~les Wlslang on
Apphcatton for Cond~t~onal Leave
his affairs ; that opinion of the Tribunal remaining as a key point
under challenge in the present proceedings.
3. The submissions-in-reply, filed on 18 April 2002 by the First and
Third respondent's and received by the applicant by fax
yesterday, make in their latter paragraphs assertions that require
to be viewed in the light of evidence not yet before the Court, but
present in the applicant's present affidavit whose admission into
evidence is now sought.
In the Court of Appeal of New
Zealand
No. 12
SIGNED
Memorandum M~les W~slang on
Appl~cat~on for Condit~onal Leave
Dr Miles Wislang
(Applicant)
at Whangaparaoa, Auckland, this 23rd day of April 2002.
TO ; The Court of Appeal
The First and Third Respondents.
In the Court of Appeal of New
Zealand @ ------- No. 13
Judgment of Blanchard J. in Court
of Appeal granting Conditional Leave
29 A ril2002 IN THE COURT OF APPEAL OF NEW ZEALAND C A ~ ~ P ~ I U ~
BETWEEN MILES ROGER WISLANG
Appellant
AND MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
AND MEDICAL PRACITITIONERS DISCIPLINARY TRIBUNAL
Second Respondent
AND COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
Third Respondent
Hearing: 24 April 2002
Corarn: Richardson P Keith J Blanchard J
Appearances: Appellant in Person M F McClelland for First and Third Respondents
2 0 Judgment: 29 April 2002
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
[ l ] Dr Wislang, having been unsuccessful in an application for judicial review in
the High Court and on appeal to this Court (judgment 4 March 2002), now seeks
conditional leave to appeal to Her Majesty in Council. He has challenged an interim
suspension of his medical registration by the Medical Practitioners Disciplinary
Tribunal pending hearing of a charge against him and also a two month suspension
order imposed by the Tribunal when it found him guilty of that charge together with
a fine of $8,500 and an award of costs. The guilty finding was on a charge of
professional misconduct relating to his practising as a hair transplant surgeon for
about four years without holding a practising certificate. The last of the decisions
challenged by Dr Wislang was the imposition by the Medical Council of New
Zealand of an oversight condition before it would issue him with a practising
certificate. There is thus some linkage between the three matters and counsel for the
respondents, Mr McClelland, although opposing the present application, has not In the Court of
sought to argue that they should be considered separately for this purpose. Appeal of New Zealand
No. 13
[2] Dr Wislang submitted that because of the amount of the fine the further Judgment01 Blanchard J In Court
f Appeal grantlng appeal lies under r2(a) of the Privy Council Rules as of right. He submitted also that ond~t~onal Leave
if the Court did not accept this argument, he should be granted leave under r2(b) 29Apr'12002
either because, he says, the determination of what the Medical Council could
properly take into account in deciding on the competence of a medical practitioner
under s54 of the Medical Practitioners Act 1995 raises a question of great public and
general importance or, under the "or otherwise" limb, because of the allegedly
ongoing adverse consequences of the three decisions on his professional reputation.
[3] We accept that an appeal lies as of right in the circumstances of this case
since the quantum of the fine, which exceeds the figure of $5,000 in r2(a), was in
issue in this Court, even though not in the forefront of the argument, as can be seen
from paras [20] and [30] of this Court's judgment:
[20] Dr Wislang accepts that he was properly found guilty and censured. At the [Tribunal] 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.
[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 , \ .
deciding how much to fine Dr Wislang and how much to require him to pay in costs.
[4] It is not possible to say with any certainty that if the Tribunal were directed to
reconsider the fine it would ultimately be fixed at a minimum of $3,500, i.e. less by
an amount of $5,000 than at present.
[ 5 ] This conclusion makes it unnecessary to consider the r2(b) grounds but we
should mention one matter which Mr McClelland accepted as being unfortunate. In
notifying various New Zealand and overseas medical organisations or officials on In ,,, O,
Appeal of New
13 December 1999 of the two month suspension the Medical Council incorrectly zealand -- described it as being related to charge of disgraceful conduct in a professional
Judgment of Elanchard J In Court respect. That is, however, a different charge, and one of a more serious character,of,ppealgrantIng
Cond~t~onal Leave than that of which Dr Wislang was actually found guilty - indeed, one which, unlike ,,April 2002
professional misconduct, could result in a penalty of removal from the register. This
matter has not been raised with us in any formal way - merely as an instance of the
consequences of the decisions - but it would seem very desirable that the error in the
notification should be corrected.
[6] Leave to appeal to Her Majesty in Council is granted subject to the usual
conditions, namely that within three months from the date of the hearing of the
application for leave to appeal the appellant must provide security for costs in the
sum of $2,000 and take all necessary steps for the purpose of preparation of the
record and the dispatch thereof to England.
Solicitors: Hanning Connor, Wellington for Appellant KPMG Legal, Wellington for Respondents
In the High Court of New Zealand
In the High Court of New Zealand NO. 14
Wellington Registry I / d ~ order as to costs I"
H~gh Court
29 April 2002
Under the Judicature Amendment Act 1972
In the matter of the Medical Practitioners Act 1995
Between Miles Roger Wislang, of Whangaparaoa, registered medical practitioner
Plaintiff
And
And
And
Medical Council of New Zealand, at Wellington
First Defendant
Medical Practitioners Disciplinary Tribunal, at Wellington
Second Defendant
The Complaints Assessment Committee of the Medical Council of New Zealand, at Wellington
Third Defendant
Order of the Court
Solicitors Acting: M F McClelland 1 N J Russell
Before the Honourable Justice John Wild
1 2 ' ~ day of April 2002
Upon reading the two memoranda the interlocutory application of the first and third
defendant's for costs and disbursements and upon the application of M F McClelland
and N J Russell, counsel for the first and third defendants
It Is Ordered That:
1 The plaintiff pay the costs and disbursements of the first and third
defendants in the total sum of $7,500.
Dated at Wellington this 12"' day of April 2002
,M/& (Deputy) ~ed i s t ra r
MICHAELA J. STACK
In the H~gh Court of New Zealand ----------
NO. 14
Order as to Costs In Hfqh Court
Sealed this 3rd day of 3 9 2002.
In the Court of Appeal of New Zealand
Between
And
And
And
In the Court of Appeal of New
Zealand
Miles Roger Wislang
Appellant
Sealed Judgement of Court of Appeal
10 July 2002
Medical Council of New Zealand
First Respondent
Medical Practitioners Disciplinary Tribunal
Second Respondent
Complaints Assessment Committee of the Medical Council of New Zealand
Third Respondent
Judgment of the Court of Appeal
W regal 89 The Terrace PO Box 10246 DX SP265 17 Wellington
Telephone (04) 472 7877 Facsimile (04) 472 2291
Solicitors Acting: M F McClelland / N J Russell 021750131 AJI
This appeal coming for hearing on the 19' and 20' of February 2002, before the Rt
Hon Sir Ivor Richardson, the Rt Hon Justice Blanchard and the Rt Hon Justice
Tipping, after hearing G D S Taylor, counsel for the Appellant, and M F McClelland
and N J Russell, counsel for the First and Third Respondents, and B A Corkill,
counsel for the Second Respondent (granted leave to withdraw)
It is Adjudged that:
1 The appeal is dismissed.
2 The appellant pay the costs of the first and third respondents in the sum of
$10,000 together with $25 disbursements as set out in the attached schedule. In the Court of Appeal of New
Zealand
Dated at Wellington this 4th day of March 2002.
Sealed:
I@ h
No. 15
Sealed Judgement of ~ o u r i of A ~ p e a l
10 Julv 2002
(Deputy) Registrar
In the Court of Appeal of New
Zealand
No. 16
BETWEEN
AND
AND
AND
IN THE COURT OF APPEAL OF NEW ZEALAND Certificate of Judgment of
Blanchard J. granting Final Leave
CA1 74/01 Originating Court No: CPZ19/00 22 October 2002
MILES ROGER WISLANG Appellant
MEDICAL COUNCIL OF NEW ZEALAND First Respondent
MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL Second Respondent
COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Third Respondent
I, CLARE BROWN, Registrar of the Court of Appeal of New Zealand, do hereby certify to the Registrar of the High Court at Wellington that at a sitting of the Court of Appeal, held at Wellington on the 18'~ day of October 2002, at which the Right Honourable Justice Blanchard presided, there was delivered the judgment of the Court whereby
IT WAS ADJUDGED that the application for final leave to appeal to the Privy P -----;l . bvU,,,,, is graztec! zzcorGirgly.
GIVEN under my hand and under the seal of the said Court of Appeal, at Wellington, this 22nd dav of October 2002.
Claire Brown Registrar
Court of Appeal Cnr Molesworth & Aitken Streets, PO Box 1606, DX SP27010, Wellington, New Zealand - -B 5 3 a
Telephone: 04 914 3540 Fax: 04 914 3570 -
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