in the court of appeal of new zealand ca no. 174101...

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






Appellant


First Respondent


Second Respondent


Third Respondent

SCHEDULE OF DOCUMENTS OMITTED FROM RECORD ON APPEAL TO


~ 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


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 [email protected]

Counsel G D S TAYLOR

Barrister P 0 Box 5294 DX SP22510

Phone: 495 3451 Fax 495 3458 email: [email protected]

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.


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"


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.


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


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.


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.


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


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"


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.


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"


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.


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).


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

/ &


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. -


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


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.


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."


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


No. 1


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.


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.


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.


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,


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.


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.


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


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.


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.


-

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.


- --p-

No. i


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


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 ) )


No. l

Afidav~t of M~les Roger W~slanq

5 February 2001


-------------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


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


(P J Connor) P 0 Box 10376 DX SP 23544


email [email protected]



Phone: 495 3451 Fax 495 3458 email: [email protected]

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.


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.


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.


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:


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


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


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.)


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


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


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.


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 [email protected].

In the High Coutt of New Zealand

No. 2

Amended Statement of Cla~m of M~les Rooer Wtslano

28 May 2001



----------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


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


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


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.


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 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 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 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




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.



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





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 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 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.





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 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 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




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.


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.


61 They deny paragraph 61 of the Amended Statement of Claim.


Third course of action as to third reviewable decision



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.


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.


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



Plaintiff


First Defendant


Second Defendant

AND COMPLAINTS ASSESSMENT COMMlllEE OF THE MEDICAL COUNCIL OF NEW ZEALAND

SECOND AFFIDAVIT OF MILES ROGER WISLANG DATED DAY OF MAY 2001


(P J Connor) P 0 Box 10376 OX SP 23544


email hanning [email protected]



Phone: 495 3451 Fax 495 3458 email: [email protected] .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,


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


[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


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


[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


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 . ~


W t a r P 0 Bou 5294 DX SP22!X0

Phone: 495 3451 Fax 495 3458 emaik [email protected]

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


First Respondent


Second Respondent


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: [email protected] 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:


Zealand ------_I----.

No. 9 Judgment of

Blanchard J. in 4 March 2002


Appellant


First Respondent


Second Respondent


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


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


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.


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


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


[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


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





Appellant


First Respondent


Second Respondent


Third Respondent

NOTICE OF MOTION FOR CONDITIONAL LEAVE TO APPEAL TO HER MAJESTY IN COUNCIL

~ a t e d Z ! March 2002


WELLINGTON (Mr P J Connor)

P 0 BOX 10-376 DX SP23544 Phone: (04) 499-3280 Fax: (04) 499-3308 Email: [email protected]

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.


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.


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




Appellant


First Respondent


Second Respondent


Third Respondent

AFFIDAVIT OF APPELLANT IN SUPPORT OF APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO


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


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






Appellant


First Respondent


Second Respondent


Third Respondent

MEMORANDUM OF APPELLANT ON APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO


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


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.


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.


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 ~


Appellant


First Respondent

AND MEDICAL PRACITITIONERS DISCIPLINARY TRIBUNAL

Second Respondent


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 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


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


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 -