EMMERSON v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 2887

EMMERSON v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 2887 [23 November 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECIV-2017-488-000066[2017] NZHC 2887UNDER Section 106(2)(b) and (d) of the HealthPractitioners Competence Assurance Act,and Schedule 1, s 5(3) of the HealthPractitioners Competence Assurance Act2003BETWEEN LYNDA MARIE EMMERSONAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE APPOINTED BY THEMEDICAL COUNCIL OF NEWZEALANDRespondentHearing: 23 November 2017Counsel: C Muston for AppellantDR La Hood and AR Garrick for RespondentJudgment: 23 November 2017JUDGMENT OF DOWNS J (Interim name suppression)This judgment was delivered by me on Thursday, 23 November 2017 at 11.15 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:C Muston, Whangarei.Luke Cunningham Clere, Wellington.[1] The background to this judgment is in mine of 20 November 2017.1 In brief, the New Zealand Health Practitioners Disciplinary Tribunal found Dr Lynda Emmerson committed professional misconduct: prescribing drugs of dependency to people close to her; using methamphetamine and cannabis; andattempting to mislead the prosecuting authority—including in writing—about herdrug use. Dr Emmerson appealed in relation to both liability and penalty—theTribunal ordered cancellation of her registration. I dismissed the appeal.[2] Dr Emmerson may bring an application for leave for a second appeal to theCourt of Appeal. She seeks interim name suppression.[3] The parties characterised the application as a stay in relation to myconclusion there was no basis for name suppression, and should lapse. Thischaracterisation is inapt. The Tribunal declined to grant Dr Emmerson permanentname suppression. However, it granted suppression for a month to allow her tolodge an appeal to this Court and here, seek interim orders. An order was made byconsent on 23 June 2017. Dr Emmerson did not appeal the Tribunal's conclusion inrelation to name suppression. And at the hearing of the appeal, Dr Emmerson soughtname suppression if, and only if, I allowed the appeal in relation to either liability orpenalty. Against this background, the application is a fresh one for interim namesuppression. But nothing turns on this.[4] Mr Muston contended Dr Emmerson should have name suppression toprotect her position in the interim. He observed other medical professionals have, onoccasions, been the beneficiary of interim orders, and Dr Emmerson should betreated "fairly and equally". Mr Muston was not able to identify specific grounds forsuppression beyond that Dr Emmerson will experience "shame" if her name ispublished, and she has been in a "terrible situation" through and in consequence ofthe medical disciplinary proceedings.[5] Mr La Hood resisted the application on the bases the putative prejudice wasgeneric, and the presumption of open reporting had not been displaced. Mr La Hoodalso observed Dr Emmerson had chosen to bring defamation proceedings against two1 Emmerson v A Professional Conduct Committee [2017] NZHC 2847.doctors in connection with her earlier practise as a psychiatric registrar at Whangarei Hospital, which were live before Davison J in Whangarei.[6] I am satisfied the application should be dismissed for six inter-relatedreasons.[7] First, disciplinary proceedings in a medical context carry a presumption ofopen reporting.2 So too related appeals.3 It follows the public is entitled to knowabout this case, including Dr Emmerson's identity, unless cogent reasons exist forsuppression.[8] Second, the fact Dr Emmerson is a professional who has fallen from grace isnot, by itself, sufficient. Shame, even ignominy, can follow a conclusion aprofessional has committed misconduct. But as the Court of Appeal has observed,professionals do not enjoy a different standard of justice from anybody else.4[9] Third, while Mr Muston is correct examples of interim name suppression inrelation to medical professionals can be readily identified, that is only because thecircumstances of those cases required suppression. And, more particularly, becausethe individuals concerned could identify particular reasons for suppression. Fairnessand equality do not justify suppression unless Dr Emmerson can demonstratesuppression is justified with reference to her circumstances.[10] Fourth, no reasons have been identified for interim name suppression beyondthe generic. Indeed, Mr Muston responsibly observed there was little aboutDr Emmerson's personal circumstances he could advance in support of theapplication.[11] Fifth, Dr Emmerson may not appeal to the Court of Appeal as a matter of right. That Court's leave is required. It may be granted only if that Court is satisfied2 Health Practitioners Competence Assurance Act 2003, s 95.3 Y v Attorney-General [2016] NZCA 474.4 Y v Attorney-General, above n 3, at [32].the case raises a matter of general or public importance, or Dr Emmerson hassuffered or may suffer a miscarriage of justice.5[12] Sixth, Dr Emmerson accepts engaging in the behaviour that led tocancellation of her registration. To elaborate, Dr Emmerson accepts she prescribeddrugs of dependence to those close to her; regularly used methamphetamine andcannabis; and misled the prosecuting authority. The only factual conclusionDr Emmerson contests is whether she intentionally misled the authority.Dr Emmerson's case is that her acknowledged misconduct ought not to beconsidered professional misconduct, or have resulted in cancellation of herregistration as a doctor. Mr Muston said the latter is likely to be the issue ventilated,if leave is granted, to the Court of Appeal.[13] I consider there is a high public interest in these facts being knownirrespective of whether an appellate Court ultimately concludes the penalty was toosevere. Equally, any "shame" vis-à-vis publication of name is logically referable toDr Emmerson's admitted conduct irrespective of whether it should have led tocancellation of registration.[14] The application is dismissed...Downs J5 Health Practitioners Competence Assurance Act, s 113(4) and Criminal Procedure Act 2011, s 303(2).