M R WINEFIELD V THE PROFESSIONAL CONDUCT COMMITTEE HC WN CIV-2006-485-2225

M R WINEFIELD V THE PROFESSIONAL CONDUCT COMMITTEE HC WN CIV-2006-485-2225 18 December 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-2225IN THE MATTER OF an appeal pursuant to section 106(2)(d) of the Health Practitioners Competence Assurance Act 2003 BETWEEN M R WINEFIELD Appellant AND THE PROFESSIONAL CONDUCT COMMITTEE Respondent Hearing: 5 December 2007 Appearances: G Phipps for appellant J Coates and A de Joux for respondent Judgment: 18 December 2007JUDGMENT OF CLIFFORD J Introduction[1] Mr Winefield, the appellant, is a registered pharmacist. [2] On 28 July 2005 he was sentenced in the District Court at Timaru. He had earlier pleaded guilty to some 22 charges relating to fraudulent claims made by him to Healthpac, a former division of the Ministry of Health, on some 898 identified occasions between June 2001 and August 2004. Those charges, as recorded by the Health Practitioners Disciplinary Tribunal ("the Tribunal") in the decision under appeal, comprised: a) three charges of using a document with intent to defraud for the purpose of obtaining a pecuniary advantage: s 229A Crimes Act 1961;b) one charge of dishonestly using a document with intent to obtain a pecuniary advantage: s 228(b) Crimes Act 1961; c) six charges of forgery of a document, namely medical prescriptions: s 264 Crimes Act 1961; and d) twelve charges of making a false document, namely medical prescriptions: s 256(2) Crimes Act 1961. [3] As a result of that conduct, Mr Winefield had fraudulently obtained some $10,800 from Healthpac. He did so in a variety of ways, principally – during the period January 2001 to October 2001 – by misrepresenting that he had dispensed a subsidised medicine, Rubifen, when he in fact had dispensed a non-subsidised medicine, Ritalin. Mr Winefield also claimed dispensing fees, in connection with other drugs, that he was not entitled to. [4] The District Court sentenced Mr Winefield to perform 200 hours of community work, and to pay $20,000 in costs. Prior to being sentenced, Mr Winefield had paid reparation in full to the Ministry of Health. [5] On 24 February 2006 Mr Winefield was charged, under s 91 of the Health Practitioners Competence Assurance Act 2003 ("the Act"), with being a practitioner who had been convicted of an offence that reflected adversely on his fitness to practice (s 100(1)(c) of the Act). [6] That charge was considered by the Tribunal on 31 July 2006. [7] The Tribunal found the charge proven, and imposed the following penalties pursuant to s 101: a) That Mr Winefield's registration be suspended for a period of 9 months. b) That Mr Winefield be censured.c) That Mr Winefield pay 30% of each of the costs of the enquiry and of the hearing by the Tribunal, equating to a total payment of $10,927.54. [8] Mr Winefield accepts that he should have been censured. He appeals to this Court against his penalty of suspension and the Tribunal's order that he pay 30% of the Tribunal's costs. [9] He does so on the following grounds, which I express in my terms rather than in the way in which they were phrased in his formal notice of appeal: a) The order of suspension was excessive, and out of line with penalties in similar cases. In deciding to suspend him, the Tribunal had failed to consider a range of relevant mitigating factors that should have led to a lesser sentence. It would have been sufficient for the Tribunal to censure him, and to impose appropriate conditions on his right to continue to practice. The Tribunal was wrong to conclude, as a matter of law, that it did not have the power to impose conditions. b) The costs order made against him was inappropriate as the actual costs of the Tribunal with respect to which that order was expressed, were not reasonable costs. They were excessive. [10] Shortly before today's hearing, Mr Winefield made an application pursuant to rule 716 of the High Court Rules for leave to adduce further evidence. Ms Phipps advised the Court that, in her view, that evidence would be relevant to a consideration of the appropriate penalty to impose, were the Court to uphold this appeal against the Tribunal's decision on penalties. She did not suggest that the evidence was relevant to my consideration of whether the decision of the Tribunal was wrong. On that basis, I defer consideration of the application until I have made my decision on the substantive appeal against the sentence imposed by the Tribunal. [11] I propose to consider the issues raised by this appeal in the following order:a) Was the Tribunal wrong to impose a sentence of 9 months suspension on Mr Winefield? b) Was the Tribunal correct in concluding that it did not have the power to impose conditions, once it found the charge against Mr Winefield proven? c) Was the Tribunal wrong to order that Mr Winefield pay 30% of the Tribunal's costs as part of the penalty it imposed? [12] I first summarise the Tribunal's decision, and then set out my understanding of the legal principles relevant to this appeal.The Tribunal's decision[13] The Tribunal first set out the background to its consideration of the Notice of Charge laid against Mr Winefield under s 100(1)(c). The Tribunal reviewed the facts involved in the offending, and the matters considered by the District Court Judge at the time of sentencing. [14] The Tribunal then considered various legal issues relating to the charge laid under s 100(1)(c). The Tribunal concluded that the charge of having been convicted of offences that reflect adversely on Mr Winefield's fitness to practise had been proven to the relevant standard. [15] In reaching that decision, the Tribunal said it was cognisant of the following matters: a) The offending occurred as part of Mr Winefield's professional duties as a pharmacist. b) It involved repeat offending over a prolonged period.c) Mr Winefield's actions were in breach of his professional and ethical obligations. d) The offending involved dishonesty. e) The offending had the potential to adversely affect public confidence in the profession of pharmacy. f) Mr Winefield involved his staff in his offending. He gave his staff instructions to make false claims and directed his staff to falsely represent that medicines had been dispensed "stat" 1 . This aspect of Mr Winefield's offending weighed heavily with the Tribunal. g) Mr Winefield's offending represented a breach of the trust and confidence placed in him by his community. [16] The Tribunal's decision extends to some 117 paragraphs. Approximately half of the decision comprises the introductory section, and the Tribunal's consideration of the s 100(1)(c) charge. [17] At [62], the Tribunal commences its discussion of the question of penalty. The Tribunal first concluded that it was not in a position to impose conditions. This is a conclusion to which I shall return. [18] Then, in a relatively short section of its decision – comprising paragraphs [70] to [80] – the Tribunal discussed and determined the penalty to be imposed. [19] The Tribunal referred to a number of the functions of disciplinary proceedings which it had borne in mind, namely: to protect the public; to maintain professional standards; to punish; and to rehabilitate practitioners worthy of that1 Dispensing medicines "stat" involves dispensing 90 days medicine at once, instead of the usual, at the time, one month's supply. On numerous occasions Mr Winefield dispensed medicines "stat", as requested by patients as they were entitled to. He then, however, fraudulently claimed for repeat dispensing fees, when no such repeat dispensing occurred.course of action. The Tribunal said that it was particularly mindful, in Mr Winefield's case, of the need to maintain professional standards. [20] The Tribunal then recorded its decision as regards the penalties it imposed on Mr Winefield. [21] Having recorded those decisions, the Tribunal explained its reasoning as follows: a) It had been assumed by the District Court when sentencing Mr Winefield that the Tribunal would order that Mr Winefield's registration be cancelled. b) Moreover, the Professional Conduct Committee had urged the Tribunal to consider cancellation of registration as the appropriate starting point. The Tribunal referred to a number of cases in which cancellation had been imposed for dishonesty offending. c) Counsel for Mr Winefield had, however, urged the Tribunal to consider the differences between Mr Winefield's case and those involving cancellation of registration. In that context, the Tribunal referred to a number of cases before the Pharmaceutical Society's Disciplinary Committee (Raniga, Frith and Anderson) where pharmacists convicted of dishonesty offending had had a period of suspension, rather than cancellation, imposed. The Tribunal concluded, having considered those authorities, that Mr Winefield's case was more appropriately dealt with by way of a period of suspension, rather than cancellation. In reaching that conclusion, it was influenced by two factors: i) First, the penalty imposed by the District Court did not include a period of imprisonment.ii) Second, in Raniga (Pharmaceutical Society's Disciplinary Committee, July 2003), a pharmacist was censured and suspended from practice for 9 months. [22] The Tribunal, in referring to Raniga, commented as follows:In determining the period of suspension appropriate, the tribunal noted thatRaniga (Pharmaceutical Society's Disciplinary Committee, July 2003), the pharmacist was censured and suspended from practice for nine months. In that case the Disciplinary Committee stated that: "The system of payment by Health Benefits Ltd to pharmacists through the public health system is seriously undermined when pharmacists make false claims for payments Even when the gains are not significant, the profession must mark its concern by imposing a serious penalty for offending which constitutes a breach of a pharmacist's most fundamental obligations." The extent of the financial gains in Raniga were not significant and indeed were less significant than in the current case, but the amount of the financial gain from the fraud weighed less heavily with the Tribunal than the dishonesty itself, regardless of its dollar value.[23] In the rest of its decision ([81] to [117]), the Tribunal considered the question of whether or not Mr Winefield should be granted permanent name suppression, before concluding that he should not be.Relevant legal principles[24] There was no dispute between counsel on the legal principles governing the approach to be taken by me on appeal. [25] Appeals from the Tribunal are by way of rehearing (s 109(2) of the Act). On hearing the appeal, the Court: a) may confirm, reverse, or modify the decision or order appealed against; and b) may make any other decision or order that the person or body that made the decision or order appealed against could have made.[26] The principles for the Court on appeal were succinctly summarised in Patel v Dentists Disciplinary Tribunal (HC AK AP77/02 8 October 2002 Randerson J) as follows (at [21]): a) The appeal is by way of rehearing under Rule 718(1) of the High Court Rules. b) The Court proceeds on the basis of the record from the Tribunal but is required to exercise its own judgment. c) The Court has power under the Act to confirm, reverse or modify the decision of the Tribunal. d) The Court is not bound to accept the Tribunal's findings of fact although, in accordance with ordinary appellate principles, this Court would be slow to interfere with a factual finding. e) The onus is on the appellant to establish a material error of law or fact; that the Tribunal proceeded on a wrong principles, that a miscarriage of justice has occurred; or that the decision was plainly wrong. f) The Court will not merely substitute its own view for that of the Tribunal and will ordinarily give substantial weight to the professional experience and expertise of those sitting in disciplinary tribunals in judgment on their colleagues. [27] The decision of His Honour Justice Gendall in Professional Conduct Committee v Martin (HC WN CIV-2006-485-1461 27 February 2007 at [18] and [19]) confirms that these principles remain relevant to appeals under the Act, and that:Due deference must be paid to the conclusions of the Tribunal containing, as it did, registered nurses and a lay member and legal representative in a sense representing the wider community, but in the end the Court will consider whether the Tribunal was wrong, and whether the orders imposed wereproper and sufficient to protect the public and maintain the standards expected of the profession by the community.[28] The Court in Martin stated that the issue before the Court is "whether the Tribunal was clearly wrong in making the orders that it did" ([21]).Was the Tribunal wrong to impose on Mr Winefield a penalty of nine months' suspension?[29] Ms Phipps submitted that, for two principal reasons, the Tribunal had been wrong to impose a penalty of nine months' suspension on Mr Winefield: a) The Tribunal had failed to take proper account of relevant mitigating factors. b) The Tribunal had taken an approach to Mr Winefield that was inconsistent with other relevant decisions.Mitigating factors[30] Ms Phipps said the mitigating factors not referred to or taken account of by the Tribunal included: a) That Mr Winefield had been motivated by the needs of his patients, not personal gain. b) That Mr Winefield had already suffered a considerable personal and financial cost as a result of his offending. This included – in financial terms – the District Court costs order, Mr Winefield's own legal costs, the considerable loss he incurred as a result of the forced sale of his Timaru business and the cost of relocating to Wellington. Ms Phipps estimated the total direct financial cost to Mr Winefield – excluding the loss on the sale of his business – as being some $94,000.c) That Mr Winefield had, other than this offending, an exemplary record as a practising pharmacist. The very large number of references provided to the District Court at the time of sentencing confirmed the extremely high regard in which he was held, personally and professionally. [31] By reference to these mitigating factors, and given the Tribunal's failure to refer explicitly to them in any material way, the Tribunal was to be seen as having failed to consider them. As a result, its decision to suspend Mr Winefield for nine months was wrong. [32] I acknowledge two elements of Ms Phipps' submissions. [33] First, Mr Winefield's offending can, I think, be understood, at least in part, as having been occasioned by his concerns for his patients. The District Court Judge acknowledged in his sentencing notes that:[10] Doctor Collins describes that the forgery, and the submission would appear to be well open to him, was carried out to meet the convenience of others. That submission is able to be made because, once again, we see that with each transaction only a very small amount is involved.[34] Second, the Tribunal did not in its decision refer in any detail to the mitigating factors outlined by Ms Phipps. [35] I do not think it follows, however, that the Tribunal got its penalty decision wrong. [36] The Tribunal, in referring to the agreed statement of facts, specifically raised with Ms Phipps the question of "why the offending occurred" (p 57, lines 17-19 of the Transcript). [37] The Tribunal was, in my view, endeavouring to put the agreed statement of facts into a broader context. In responding to that inquiry Ms Phipps (and I refer here to p 58, line 32 to p 59, line 21) referred to the appellant's desire, as regards the Ritalin offending, to "get better treatment" for his patients.[38] Ms Phipps had also, in her submissions, placed considerable emphasis on other mitigating factors. [39] That the Tribunal took account of these matters is, in my view, reflected in the fact that, whilst invited by the Professional Conduct Committee to take cancellation of registration as a starting point, the Tribunal concluded that the lesser penalty of suspension was appropriate. [40] I also note that when the appellant was being sentenced in the District Court, it had been assumed that his registration would be cancelled. The Judge had referred to that matter in this way:You will be held accountable by your profession and your peers to the extent that it is inevitable that you will be deregistered. I am told from the bar, and accept, that you will not oppose that deregistration. That can only be described as significant accountability and a salutary fall from grace ([13]).[41] Moreover, the Tribunal – in determining that the charge against Mr Winefield under s 100(1)(c) had been proved – had set out, as referred to at [15], its overall analysis of the key elements of the offending involved. [42] In my judgment the Tribunal's exchange with Ms Phipps, and that analysis, shows that it did understand the mitigating factors identified, but at the same time understood the essential criminality of the appellant's behaviour. That is, although his offending may have been occasioned by his perception of the needs of his clients, he nevertheless - at the same time – fraudulently claimed moneys to which he was not entitled. Moreover, he could have responded to those perceived needs without making fraudulent claims. The fraudulent claims were made for his own financial benefit. [43] I am not therefore persuaded that, by reference to it not having referred explicitly to mitigating factors, the Tribunal can be seen to have failed to take account of relevant factors, and got its decision wrong.An inconsistent decision?[44] Ms Phipps referred to a number of decisions from the Court, the Tribunal, and predecessor professional disciplinary bodies, in support of her submission that the Tribunal's decision was inconsistent with the approach taken in other cases. In this context, she referred to the acknowledgement in s 3(2) of the Act that the Act seeks to attain its principal purpose (of protecting the health and safety of members of the public) by providing, among other things, "for a consistent accountability regime for all health professions". [45] Ms Phipps placed particular reliance on a comparison of the Tribunal's decision as regards the appellant, and the recent decision of the Court in the case ofYoung v Professional Conduct Committee (HC WN CIV-2006-485-1002 1 June 2007). [46] In the Young case, a pharmacist devised an elaborate scheme involving the dispensing of prescription medicines to overseas consumers without prescription. Apparently, she had legal advice that her actions may not have breached the Medicines Act 1981 or the Medicines Regulations 1984. The Tribunal, by majority decision, imposed a 3 month suspension and the maximum fine available ($10,000). (Re Young PHAROS/10P). That suspension was appealed to the High Court. The Professional Conduct Committee cross-appealed. In considering the cross-appeal Young J commented:[the PCC] submitted the three month suspension was inadequate to reflect the seriousness of these conclusions and insufficient to protect the public and to give a stern message to the profession. I have seriously considered increasing the three month penalty. I have decided not to do so for reasons relating to Ms Young's personal circumstances, penalties already imposed and relativity.[47] It was Ms Phipp's submission that, by comparison to the Young case, the amounts of money involved in the appellant's offending were much less and his offending had not been motivated by commercial gain.[48] I acknowledge that there is some difficulty in reconciling the 3 month suspension imposed in the Young decision, with the Tribunal's decision to impose a penalty of 9 months suspension on the appellant. [49] In addition to pointing to Justice Ronald Young's concern that the penalty may have been so lenient as to require increasing, I note that the underlying conduct in Young was of unlawful dispensing and not, as here, of fraud and dishonesty. I also note that, notwithstanding the scale of Ms Young's commercial venture, she was only prosecuted on the basis that she had been involved in the unlawful dispensing of medicines on five occasions (see [61] of the Tribunal's decision in theYoung case). [50] I have not, therefore, found the Young decision to be of great assistance in considering the Tribunal's decision regarding the appellant. [51] Of more relevance, in my judgment, are cases dealing with dishonesty offending of a type similar to that for which the appellant was convicted. [52] As Mr Coates submitted, many cases involving serious and repeated dishonesty offences by a registered health practitioner have resulted in cancellation of registration. See, for example and as cited by Mr Coates, Philipiah (Medical Practitioners Disciplinary Tribunal 264/03/114C), Haine (Pharmaceutical Society's Disciplinary Committee, April 1998) and Curtis (Pharmaceutical Society's Disciplinary Committee, September 1993). [53] More relevantly, given the very large amounts of money in cases such asPhilipiah and Curtis, there have also been a number of cases involving dishonesty where, with reference to what Mr Coates described as "strong mitigating factors", a lengthy period of suspension had been imposed in place of cancellation of registration. In support of that proposition Mr Coates referred me to the following cases, in addition to the Raniga decision: a) In the 1998 case of Frith (Pharmaceutical Society's Disciplinary Committee, March 1998), a pharmacist received substantial paymentsfrom Health Benefits Limited for prescriptions that were not dispensed to customers. He was found guilty of professional misconduct, suspended for a period of 18 months, and ordered to pay costs of $19,000. The Committee commented that:Mr Frith embarked upon a scheme over a lengthy period of time whereby he received substantial payments for prescriptions that were not dispensed to customers. That constitutes a most fundamental breach of the obligations imposed upon a pharmacist. The Committee believes that there is no room for penalising pharmacists who engage in this type of conduct by anything less than a period of suspension.b) In Anderson (Pharmaceutical Society's Disciplinary Committee, September 1996) a pharmacist was suspended from practice for two years for stealing $18,000 from his employing pharmacy. The Pharmaceutical Society's Disciplinary Committee described the suspension as a penalty of "extreme leniency" and commented that:In normal circumstances theft by a pharmacist when acting as a servant in a pharmacy would require removal from the register. It is discreditable to a high degree [A]ny penalty less than suspension would be totally inadequate and inappropriate for the type of offending that occurred, and its persistent nature.[54] On the basis of those cases, which I accept are relevant comparators as regards the appellant's offending, I do not think it can be concluded, as Ms Phipps submitted, that the Tribunal's decision here was materially inconsistent with other decisions it had reached in similar circumstances.Conditions[55] I have concluded that the penalty of 9 months' suspension imposed by the Tribunal on Mr Winefield was not wrong. In imposing that sentence, the Tribunal concluded that, even if it had considered it was able to impose conditions, it would not have done so. In these circumstances, it is not necessary in my judgment that I resolve the question of whether or not the Tribunal has power to impose conditionsin circumstances such as those applying to Mr Winefield. That matter is better considered in a case where it is a live issue.Costs[56] For Mr Winefield, Ms Phipps did not take issue with the 30% contribution imposed. Rather, a detailed breakdown of the relevant invoices was given and it was contended that numerous elements were unreasonable. Ms Phipps suggested that it was appropriate for the Court to carry out its own assessment of the invoices and to make an appropriate award. [57] For the respondent, Mr Coates emphasised that an award of costs must be viewed as an element of the penalty. In imposing this element of the penalty, the Tribunal was aware of the amount that the appellant would be required to pay. Mr Coates submitted that the Tribunal was best placed to compare the reasonableness of costs with other cases heard by the Tribunal. The question of costs had been extensively argued before the Tribunal. Counsel had each submitted written submissions, then further written submissions in reply. The Tribunal had delivered a separate decision on the question of costs. There was no authority to suggest the award of costs in the Tribunal should be linked to scale costs in the High Court Rules. [58] The imposition of an order for costs by the Tribunal is an element of penalty. The record of the Tribunal's decision shows that, as submitted by Mr Coates, there were extensive submissions by counsel on the question of costs. The Tribunal issued a separate decision on its award of costs. In that, it acknowledged the need for the underlying costs, with respect to which any award might be made, to be fair and reasonable. [59] In ordering that the appellant pay 30% of the costs, the Tribunal noted the need to be wary of undertaking a detailed review of accounts rendered but had, in my judgment, reached a view that they were "fair and reasonable" costs. The Tribunal had, moreover, reduced the accounts rendered to it by $4,000 to take account ofmatters that it was advised should more properly fall on the profession as a whole, rather than particularly on Mr Winefield. [60] Further the Tribunal noted that it was cognisant of the following matters in making that award of costs: a) That the hearing had been able to proceed by way of an agreed statement of facts. b) That Mr Winefield had co-operated with the Professional Conduct Committee and the Tribunal. c) That Mr Winefield had attended the hearing. d) That the level of contribution to costs was consistent with previous decisions of the Tribunal. e) That costs not paid by Mr Winefield would fall on the profession as a whole in the context of proceedings that had arisen as a result of convictions for using documents with intent to defraud and forgery of medical prescriptions. [61] In my view, the Tribunal reached a reasoned and reasonable decision with regard to the order of costs. That decision cannot be said to have been wrong.Conclusion[62] Mr Winefield's appeal against the decisions of the Tribunal is therefore dismissed. [63] On the basis of that decision, it is not necessary that I consider formally the admissibility of the additional evidence Ms Phipps sought to introduce. Having said that, I have not been unmindful of the contents of that evidence. That evidence, very much in summary, provided further confirmation of the high regard in which Mr Winefield is held by others in his profession. The further evidence also recorded theMinistry's recent acknowledgement that substitution of the drug Ritalin by the drug Rubifen can produce adverse consequences for users of those drugs. To that extent, the motivation for the actions taken by Mr Winefield in dispensing Ritalin to patients, in terms of his perception of the adverse consequences of the shift to Rubifen, can be said to have been confirmed. As indicated above, however, I think both the District Court and the Tribunal recognised, as I have done in my judgment, that there was a clear element of concern for his patients which occasioned Mr Winefield's actions. At the same time, and as I have also recorded, the matters which brought him before the District Court and the Tribunal related to fraudulent behaviour designed to procure for himself financial benefits to which he was not entitled. At the end of the day, it is that conduct which resulted in his conviction in the District Court, and the penalty imposed on him by the Tribunal. [64] Mr Winefield will now be required to serve the period of suspension. At the hearing of this appeal, Ms Phipps noted that Mr Winefield had committed to providing locum assistance to several pharmacists during the upcoming Christmas holidays. If Mr Winefield's appeal was unsuccessful, Ms Phipps requested that the effect of the suspension order be suspended to enable Mr Winefield to meet those locum commitments. In the circumstances, I am agreeable to that course of action. Accordingly the penalty of suspension for 9 months is suspended and is to take effect on and from 1 February 2008. I trust that that suspension will enable Mr Winefield to meet the locum commitments he has entered into. [65] The respondent applied for costs against Mr Winefield. As the respondent has succeeded in these proceedings, it is entitled to costs. Costs will be on a 2B basis. I trust the parties will be able to agree between them on the question of costs. If that does not prove to be the case, they may file brief written submissions to me no later than 1 February. Any such submissions are not to comprise more than 5 pages from either party. __________________________Clifford JSolicitors: Timpany Walton, Timaru for the appellantBuddle Findlay, Wellington for the respondent