CULLEN V A PROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND HC AK CIV 2008-404-6786

CULLEN V A PROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND HC AK CIV 2008-404-6786 14 November 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-6786BETWEEN RHYS MICHAEL CULLEN Appellant AND A PROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Respondent Hearing: 7 and 8 October 2008 Counsel: Dr R M Cullen, in person, Appellant C R Carruthers QC and D Boldt for Respondent Judgment: 14 November 2008JUDGMENT OF HEATH JThis judgment was delivered by me on 14 November 2008 at 3.00pm pursuant to Rule 540(4) of the High Court Rules Registrar/Deputy RegistrarSolicitors: Thomas Dewar Sziranyi Letts, Wellington Counsel: C R Carruthers QC, Wellington D Boldt, Wellington Copy to: Appellant in personContents Introduction [1]The circumstances leading to the charge [6]The Tribunal's decision [10]Appeal points [24]The High Court's appellate jurisdiction [29]Professional misconduct [33]Illegal purpose [40]Penalty [57]Result [64]Introduction[1] Dr Cullen appeals against a finding of professional misconduct made by the Health Practitioners' Disciplinary Tribunal (the Tribunal) and the penalty imposed in consequence. Dr Cullen's registration as a medical practitioner was cancelled and he was also ordered to pay a fine of $30,000 and costs of $25,000. [2] The charge of professional misconduct was brought under the Health Practitioners' Competence Assurance Act 2003 (the Act). In its final form, after two amendments during the hearing, a Professional Conduct Committee of the Medical Council of New Zealand (the Committee) alleged:Particulars of the charge The Professional Conduct Committee pursuant to section 81(2) of the Act charges that Dr Rhys Cullen ("Dr Cullen"), registered medical practitioner of Papakura, Auckland: 1. In the period from on or about January 2003 until December 2004, wrote a substantial number of prescriptions for sudomyl (a Pseudoephedrine based product) including but not exclusively at least 790 prescriptions (in excess of 46,000 tablets) for sudomyl dispensed by the Cleveland Road Pharmacy, when there was no medical/clinical justification for much of that prescribing; 2. In the period from on or about January 2003 until December 2004, wrote out prescriptions for sudomyl in the names of persons in the knowledge that those persons were unaware of that prescribing and/or that they would not be the persons receiving the prescribed medication and/or in breach of the Medicines Regulations 1984. The conduct alleged in Particulars 1 and 2 either separately or cumulatively amounts to professional misconduct.[3] The charge makes no reference to illegal conduct. A finding of professional misconduct was dependent on proof of two alleged facts, from which the Committee submitted that professional misconduct could be inferred. However, in determining that the charge had been proved, the Tribunal found that Dr Cullen had been involved in an unlawful act, namely the supply of a precursor substance (pseudoephedrine, itself a Class C controlled drug) for the purpose of manufacturing the Class A controlled drug Methamphetamine. [4] Dr Cullen has never been charged with a drug offence involving the supply of pseudoephedrine or the manufacture of Methamphetamine. However, he had, before the charge was laid, been subjected to a Police investigation. While it is now unlikely that charges will be brought, Dr Cullen remained in jeopardy of prosecution at the time of the disciplinary hearing. There is no statute of limitation for serious offending. [5] Dr Cullen's appeal challenged the Tribunal's findings that the particulars of the charge had been proved and the proved conduct amounted to professional misconduct. During the course of the hearing Dr Cullen narrowed the scope of his appeal, with the consequence that the real issues for determination are: a) Did the proved conduct amount to professional misconduct? b) Was the Tribunal was entitled to consider and to make findings on alleged criminal conduct? c) Was the penalty imposed manifestly excessive?The circumstances leading to the charge[6] Dr Cullen was a general practitioner, based in Papakura. The charge (set out at para [2] above) arose out of the way in which he had prescribed the drug Sudomyl. Sudomyl is a generic name for pseudoephedrine.[7] From 15 October 2004, pseudoephedrine was scheduled as a Class C controlled drug for the purposes of the Misuse of Drugs Act 1975. Until 24 July 2006, it was a prescription and pharmacy-only medicine controlled by the Medicine Regulations 1984. [8] Pseudoephedrine is also the active ingredient for the Class A controlled drug Methamphetamine. There was some evidence before the Tribunal that the quantity of pseudoephedrine prescribed by and dispensed for the benefit of Dr Cullen could only be consistent with quantities obtained for the purpose of manufacturing Methamphetamine. That evidence came from a private investigator, Mr Turley. I refer to that evidence later. [9] Much of the evidence adduced before the Tribunal came from former patients, whose medical records indicated had been prescribed sudomyl. Some denied that they had received a prescription for sudomyl. For others, medical evidence suggested they did not have symptoms which would justify prescription of the drug, at least in the quantities involved.The Tribunal's decision[10] Initially, Dr Cullen was represented by counsel at the hearing. During the hearing, he decided to represent himself. He elected not to give evidence himself but did call witnesses in support of his case. [11] The charge was heard in late September and early October 2007. Evidence and submissions concluded on 3 October 2007. At the end of the hearing, the Chair of the Tribunal stated that the Tribunal intended to consider the evidence and the submissions and, if possible, to announce its conclusion orally on 5 October 2007. [12] An oral decision was given publicly on 5 October 2007. The Chair announced the decision in these words:The Tribunal has considered the evidence and submissions very carefully and I say immediately that it is satisfied that the charge of professional misconduct is established. The Tribunal has concluded to the relevantstandard of persuasion that the facts of both particulars one and two are established. In each instance it has concluded that those facts amount to mal practise, negligence and bringing of discredit on the profession. The Tribunal was then required to consider whether the particulars considered separately and then cumulatively warrant professional discipline. The Tribunal was required at this stage to consider evidence that pseudoephedrine was acquired by Dr Cullen for an unlawful purpose. That is a very serious assertion. The Tribunal is satisfied to the high degree of persuasion required for such an allegation, that the substantial volumes of pseudoephedrine that was acquired by Dr Cullen for himself for no proper clinical or medical purpose and must have been required for an unlawful purpose. The Tribunal would have been prepared to find that the proved facts without considering this further assertion amounted to a sufficiently serious departure from the appropriate professional standards as to warrant disciplinary sanction but it was required to consider the further assertion and it was in the public interest that it do so. The Tribunal is completely satisfied when it takes into account the further assertion that professional discipline is warranted in order to first, protect the public, second maintain appropriate standards and thirdly to punish the practitioner. That is its conclusion whether the two particulars are considered separately or cumulatively. Accordingly the charge is upheld. (my emphasis)[13] The decision announced made it clear that the finding was based on alternative reasoning. a) The primary reason was that "the substantial volumes of pseudoephedrine that was acquired by Dr Cullen for himself [had] no proper clinical or medical purpose and must have been required for an unlawful purpose". b) The alternative reason was that the proved facts amounted to "a sufficiently serious departure from the appropriate professional standards as to warrant disciplinary sanction". [14] The Chair of the Tribunal stated that reasons for the Tribunal's decision would be given in writing as soon as practicable. While two alternative reasons for the decision had already been given, it is plain that the Chair intended to convey that the written decision would set out the Tribunal's reasoning in much greater detail. [15] After the finding of professional misconduct had been announced, the Chair asked whether counsel for the Committee and Dr Cullen were in a position to make submissions on the question of penalty. Dr Cullen was keen to do so. He wanted tobring the process to an end as soon as possible. The Tribunal heard submissions on penalty and costs but reserved its decision on both. [16] In a written decision given on 6 December 2007, the Tribunal explained its reasons for finding that "professional misconduct" had been proved. The decision on penalty and costs was incorporated into those reasons. [17] After giving its reasons for finding Particulars 1 and 2 had been proved, the Tribunal summarised the conclusions it had reached:103. At this point, the Tribunal is satisfied that a very serious situation is made out: 103.1 Vast quantities of sudomyl tables were obtained by Dr Cullen over an extended period. Very often, patients were unaware their names were being used. In many instances they were never given the medication. 103.2 There are examples in the material considered by the Tribunal of inappropriate prescribing. 103.3 Entries were made in patients' medical notes, when sudomyl was not in fact given to those patients. 103.4 There was a very significant risk of diversion of sudomyl tablets for illicit purposes, given the extended period over which the prescribing occurred. 103.5 Notwithstanding the fact that the prescribing came to the attention of the authorities in April/May 2004, Dr Cullen continued to acquire sudomyl in significant quantities. He accepted that the prescribing and "associated wastage was prolonged" from the beginning of 2004 to March 2007. He submitted that given a Police investigation, there was a natural unwillingness to impede that investigation by desisting. The Tribunal does not accept this submission as having any validity whatsoever; the most prudent course would have been to desist immediately, and co-operate fully with the authorities to resolve any difficulties. There is no evidence that this happened – rather the reverse; a very high level of prescribing of sudomyl was maintained throughout the period of the charge. 104. In summary to this point, there are very significant issues with regard to the practitioner's conduct.The Tribunal took the view "that the explanations given [by Dr Cullen and/or his witnesses were] not believable, not credible and not rational": para 127.[18] Although Dr Cullen (by this point unrepresented) elected not to give evidence, the Tribunal assessed not only evidence called by his witnesses but also prior explanations proffered by Dr Cullen in the proceeding; in particular, on an application for interim suppression of name and High Court proceedings on the same issue. The Tribunal found that Dr Cullen's conduct was explicable only if an illegal purpose existed. The Tribunal said:128. The conduct is, however, explicable if massive amounts [of pseudoephedrine] were acquired in the context of an illegal purpose. Illegal purpose explains: 128.1 The presentation by Dr Cullen himself of numerous prescriptions at various pharmacies in West Auckland, in the names of relatives and associates. 128.2 Presentation of the multiple [medical practitioner supply orders] in early 2004. 128.3 The sudden cessation of the presentation of prescriptions by Dr Cullen at various pharmacies in West Auckland in April/May 2004, following [a] complaint by to the Police. 128.4 The change in mode of presentation of prescriptions, from Pharmacy Plus to Cleveland Road Pharmacy in April/May 2004. 128.5 Acquisition of very substantial volumes of sudomyl, when not clinically or medically justified. 128.6 The use of names of patients without their knowledge. 128.7 The increasing mismatch between references to sudomyl in the Encounter patient notes, and the number of prescriptions presented. 128.8 Changing explanations. 128.9 Failure to produce any detailed records as to research, or the writing of research. 128.10 The substantial sums expended, against the possibility that such would be recovered. 128.11 The lack of independent verification of the regular disposal of sudomyl tablets. 129. There was clearly an obligation in the present circumstances for Dr Cullen to provide a proper explanation for his conduct; and he accepted this as far as the actual disposal of sudomyl was obtained. Under the principles identified in [Re C (A Solicitor) [1963] NZLR 259] and [Auckland District Law Society v Leary (High CourtAuckland, M1471/84, 12 November 1985, Hardie Boys J)], Dr Cullen was in the situation where what was much more than aprima facie case had been presented, and where he needed to provide a proper explanation. There was a high risk of an adverse inference being drawn if he failed to do so. He was warned of this and acknowledge that he understood the position.130. It was the point now under consideration, the obtaining of pseudoephedrine for an unlawful purpose, which particularly required a proper explanation from Dr Cullen. None was given. The absence of such an explanation reinforces the Tribunal's conclusion that the acquisition was indeed for illegal purposes.131. The Tribunal is satisfied of this to the very high degree of persuasion required for such a serious allegation.132. Evidence was given by Mr Turley that it was his opinion the great majority of the pseudoephedrine prescribed was used in the manufacture of methamphetamine. He reached this conclusion on the basis that the information he analysed in the present case was consistent with behaviour that he had witnessed in many other instances and on the basis of his knowledge of drug users and seekers. His conclusion is consistent with the Tribunal's conclusion. But it has not relied on his opinion to reach it. 133. For the avoidance of doubt, the Tribunal makes it clear that although lies have been told by Dr Cullen and Mr Cacciopoli, the Tribunal has not considered those lies as evidence of guilt. They were relevant only to its assessment of their credibility.134. The finding as to acquisition for an unlawful purpose is relevant, as was stated earlier, to the issue of whether discipline is warranted. (my emphasis)The reference, in para 132 of the Tribunal's decision, to the evidence of Mr Turley is puzzling. I find it strange that the Tribunal should state his evidence so fully, only to eschew reliance on it. [19] Mr Turley gave evidence that he had been a member of the New Zealand Police for some 21 years. He said that he had given expert evidence in both the District Court and the High Court on matters relating to "the black economy", "the mechanics of black economics from money laundering through to the day-to-day workings of underground businesses" and "organised crime, including analysis of the "illicit drug industry and the manufacture and sales and distribution of Class A, B and C controlled drugs". Mr Turley referred to his investigations into Dr Cullen's activities:20. I have no doubt that the great majority of the pseudoephedrine Dr Cullen prescribed was used in the manufacture of methamphetamine. Based on my experience in the Police, and my knowledge of drug users and seekers, the only logical explanation for the quantities in which the drug was being supplied was for drug manufacture. In general, people who do not have a lot of spare cash will only purchase pseudoephedrine-based products in large quantities if they plan to on-sell it at a profit. I have encountered hundreds of people over the years who seek out pseudoephedrine-based products; I have never known anyone to acquire these products in large quantities because they wish to use the medication to treat congestion. (my emphasis)[20] Counsel was representing Dr Cullen when this evidence was to be led. He objected to the admissibility of Mr Turley's evidence on the grounds that the Tribunal was not conducting a criminal trial relating to Methamphetamine but a hearing in which its function was to determine whether the two particulars alleged had been proved and, if so, whether the conduct amounted to professional misconduct. [21] The objection highlights two important factors. The first is that Dr Cullen's counsel was alive to the difference between proof of the two particulars set out in the charge and the need to infer whether professional misconduct arose from proved facts. The second is that the objection demonstrates that Dr Cullen, at least while he had the benefit of legal advice, had made plain that he did not regard himself as being required to meet allegations that he had engaged in serious illegal activity. [22] The Chair, on behalf of the Tribunal, ruled against counsel's objection, relying on cl 6 of Schedule 1 to the Act which entitles the Tribunal to receive evidence, whether or not it would be admissible in a Court of law: cl 6(1). As to relevance, the Tribunal said:As far as [Mr Turley's] opinion evidence is concerned, his evidence is relevant as going to the medical/clinical justification which is squarely before the Tribunal, and the adequacy of the explanations given. The opinion evidence is apparently based on inference and he can be properly and fully examined, cross-examined on the inferences he has drawn and the opinions he has expressed. That allows the Tribunal to determine the weight to be attributed to his evidence. The Tribunal therefore concludes that his evidence is also admissible.While Mr Turley's evidence might have been relevant to issues of penalty it was not directly relevant to the particulars in the charge. However, as the Tribunal did notplace reliance on the evidence it is unnecessary for me to determine admissibility issues. [23] In expressing its views on whether professional misconduct had been proved, the Tribunal said:135. The Tribunal has earlier indicated that the factual elements of each particular are made out. 136. In each such instance, it considers that the proved facts amount to malpractice, negligence, and the bringing of discredit to the medical profession. 137. It has considered carefully the authorities relating to each of these concepts, and each is an appropriate description of the very serious conduct which has occurred. The numerous prescriptions written in the names of patients who were unaware that their names were being used and/or did not receive the relevant medication, over a period of two years, is completely unacceptable.138. The Tribunal would have been prepared to find that discipline was undoubtedly warranted, even without the conclusion that substantial volumes of pseudoephedrine were being acquired for an unlawful purpose. On that more limited basis, there was a reckless disregard for professional standards, and it was quite irresponsible for patients' identities to be used on the scale which occurred here. There was a very significant breach of professional boundaries which would have supported the proposition that a disciplinary sanction was required for the purposes of protecting the public, for maintaining professional standards and for punishing the practitioner. 139. When the further finding that the medication was obtained for illegal purposes is also considered then the justification for discipline is even more apparent. The conduct is outrageous and reprehensible. The Tribunal is satisfied, when it takes into account this further assertion, that professional discipline is unquestionably warranted for all the above reasons.140. It reaches this conclusion whether each particular is considered separately or cumulatively. 141. All the proved facts are established to a high level of persuasion, as the seriousness of the allegations require. 142. Accordingly, the charge of professional misconduct is upheld. (my emphasis)Appeal points[24] During the course of the hearing in this Court, Dr Cullen conceded that there was sufficient evidence for the Tribunal to find that Particulars 1 and 2 of the charge had been proved. That concession (in my view, rightly and inevitably made) means it is unnecessary to discuss in detail the evidence of a number of the witnesses to which Dr Cullen referred me. [25] Dr Cullen maintained his submission that "professional misconduct" had not been proved. While Dr Cullen's attitude to the "professional misconduct" finding was plainly influenced by his concern that the Tribunal made a finding that he acted illegally, he also disputed the Tribunal's conclusion that "professional misconduct" was established, even if illegal purpose were put to one side. [26] I summarise two appeal points on the "professional misconduct" finding that I discerned from Dr Cullen's submissions: a) The Tribunal had no jurisdiction to embark on the "illegal purpose" inquiry and erred in doing so. b) The alternative basis for the finding (reckless disregard) was insufficient, in law or in fact, to sustain a finding of professional misconduct. [27] The penalty appeal is based on the premise that the proved conduct was insufficient to require cancellation of Dr Cullen's registration as a medical practitioner, particularly combined with the fine and costs orders, and was a manifestly excessive response to the conduct involved. [28] Dr Cullen's main focus was on the finding of unlawful conduct. In Z v Dental Complaints Assessment Committee [2008] NZSC 55, the Supreme Court (by a majority) held that it was permissible for a professional disciplinary tribunal to consider the motivation of a practitioner to commit a certain act, even though thatmay result in the tribunal determining, albeit on a flexibly applied civil standard, whether a criminal offence has been committed. In Z, the practitioner had, before the disciplinary proceedings, been tried and acquitted by a jury of three charges of indecent assault following a jury trial. Other similar charges had been stayed.The High Court's appellate jurisdiction[29] The finding of professional misconduct was made under s 100(1)(a) of the Act. Any person against whom a finding of professional misconduct has been made is entitled to appeal, as of right, to the High Court: s 106(2)(a). The appeal is "by way of rehearing" from a specialist tribunal: s 109(2). [30] The nature of appellate jurisdiction on an appeal "by way of re-hearing" was discussed in Austin Nichols & Co v Stichting Lodestar [2008] 2 NZLR 141 (SC). Delivering the judgment of the Supreme Court, Elias CJ said:[5] The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case. [16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion. (my emphasis)[31] Austin Nichols & Co was an appeal from a specialist tribunal. The Supreme Court emphasised the need for an appeal court to reach its own assessment on the merits of the case, rather than to treat a decision as involving a matter of discretion. In the absence of a truly discretionary decision, the issue is whether the Tribunal's judgment was correct. Matters of judgment are not the same as discretionary decisions. [32] Some authorities suggest that the approach to appeals from discretionary decisions enunciated in May v May (1982) 1 NZFLR 165 (CA) are applicable to decisions of the Tribunal in cases involving findings of misconduct. However, in Dr E v Director of Proceedings (2008) 18 PRNZ 1003, Ronald Young J held that theAustin Nichols & Co approach was applicable to appeals from findings of professional misconduct made by the Tribunal: see [12] and [15]. I agree.Professional Misconduct[33] Charges of professional misconduct are brought in reliance on s 100(1)(a) of the Act, which provides:Grounds on which health practitioner may be disciplined(1) The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that— (a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or .The Tribunal made findings of professional misconduct on both allegations against Dr Cullen: see para 136 of the Tribunal's decision, set out at [23] above. [34] Recently, a commentator described the law on the threshold standard for "professional misconduct" to be in a state of "disarray": see Andrew Beck,Professional Disarray [2008] NZLJ 285.[35] In discussing the issue, Mr Beck considered two recent decisions of the High Court (one dealing with health professionals and the other the legal profession):Martin v Director of Proceedings (High Court Auckland, CIV 2006-404-5706, 2 July 2008, Courtney J) and Complaints Committee No 1 of the Auckland District Law Society v C [2008] 3 NZLR 105 (Randerson, Hugh Williams and Winkelmann JJ). Any difference between the two judgments turns on the applicable standard. The latter applied what was said by Kirby P in Pillai v Messiter (No 2)(1989) 16 NSWLR 197 (CA) at 200, while the former did not. [36] In short, the question is whether professional misconduct requires something more than incompetence or deficiency in the practice of a profession. That 'something more' was said, in Pillai, to include a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner. [37] It is unnecessary for me to embark on a consideration of the debate identified by Mr Beck. It is clear that the Tribunal applied the higher standard, to which Pillairefers. In those circumstances, the Tribunal's decision has determined professional misconduct on a more favourable basis to Dr Cullen than would have pertained if Courtney J's judgment in Martin had been applied. I shall assume (without deciding the point) that the Pillai standard applies, for the purpose of this appeal. [38] Leaving aside the "illegal purpose" finding, I have no doubt that the Tribunal's alternative basis for finding professional misconduct was sufficient. I agree with para 138 of the Tribunal's decision: "there was a reckless disregard for professional standards, and it was quite irresponsible for the patients' identities to be used on the scale which occurred ". Reasons for making that finding can be garnered from the proved facts set out in para 128 of the Tribunal's decision, without needing to go to the additional step of finding that Dr Cullen was engaged in the activity for an illegal purpose. [39] The multi-disciplinary panel that made up the composition of the Tribunal was entitled to reach that view. With respect, I agree with it. I find there was asufficient evidential basis (reckless disregard) to warrant the Tribunal concluding that Dr Cullen was guilty of professional misconduct. That finding must stand.Illegal purpose[40] The Tribunal is established by s 84 of the Act. Its primary function is to hear and determine charges brought under s 91: see s 85(a). The Chair of the Tribunal must ensure that the practitioner is given written notice complying with s 92(1) of the Act. That provision states:Notice of disciplinary proceedings to be given to practitioner(1) Before convening a hearing of the Tribunal to consider a charge against a health practitioner, the chairperson of the Tribunal must ensure that the practitioner is given a written notice that— (a) states that the Director of Proceedings, or a professional conduct committee, as the case may be, has reason to believe that a ground exists entitling the Tribunal to exercise its powers under section 100; and(b) contains sufficient particulars to inform the practitioner clearly of the substance of the ground believed to exist; and (c) specifies the particulars of the charge; and(d) specifies a date (being not less than 20 working days, and not more than 60 working days, after the date on which the notice is received by the practitioner) on which the Tribunal intends to hear the matter. . (my emphasis)[41] The Tribunal is empowered to find professional misconduct if the practitioner has been convicted of an offence that reflects adversely on his or her fitness to practise: s 100(1)(c). That jurisdiction is exercisable if the conviction is for an offence against one of 13 specific statutes (s 100(2)(a)) or if the conviction were entered for an offence punishable by imprisonment for a term of three months or more (s 100(2)(b)). One of the statutes in respect of which a conviction is relevant is the Misuse of Drugs Act 1975: s 100(2)(a)(xi). Charges could not have been laid against Dr Cullen on this basis because he has never been convicted of an offence under the Misuse of Drugs Act.[42] The procedures of the Tribunal are set out in Schedule 1 to the Act: s 90. For present purposes the following provisions of Schedule 1 are relevant: a) The Tribunal is obliged to observe the "rules of natural justice at each hearing": cl 5(3). That obligation is consistent with the more general provisions of s 27(1) of the New Zealand Bill of Rights Act 1990. b) Clause 11 provides that all witnesses and counsel appearing before the Tribunal have the same privileges and immunities that they would have had in proceedings in the District Court. [43] I have no doubt that Dr Cullen was aware that his purpose in prescribing and arranging for sudomyl to be dispensed was in issue. That is clear from an earlier judgment of this Court, given on appeal from the Tribunal's decision to refuse interim name suppression. In Cullen v Health Practitioners Disciplinary Tribunal(High Court Auckland, CIV 2007-485-1133, 31 August 2007), Baragwanath J said:[3] I do not propose to express more than the minimum reasons for my conclusion that, whether or not the Council and the Tribunal in fact erred in their respective assessments, it has not been shown on the limited material available to me that that is the case. The reason for particular care in expressing the reasons of this Court is that the subject matter of the charges before both the Medical Council and the Tribunal is the prescribing in unusually large quantities of the drug Sudomyl which contains pseudoephedrine. That drug can be both benign and malevolent. It is a well recognised remedy for common throat ailments. It is also defined by the Misuse of Drugs Act 1975 as a precursor substance, possession of which for the purpose of its conversion into methamphetamine is a criminal offence. (my emphasis)Equally, however, it is clear (at least from Dr Cullen's counsel's objection to Mr Turley's evidence) that the disciplinary charge itself was fought on the basis that illegal purpose was irrelevant to the charge for determination. [44] Having said that, there is force in Mr Carruthers QC's argument, for the Committee, that purpose or motive was, at least, relevant to the penalty phase of the Tribunal's inquiry. I agree with Mr Carruthers that "there is a world of difference in seriousness between the actions of a doctor who abused his position to supplyprecursors, and a doctor who was engaged in good faith in a nonetheless misguided careless and risky research exercise". [45] It was unnecessary for the Tribunal to make a finding of "illegal purpose" in order to determine the charge. To determine the charge, the Tribunal had to decide whether one or both of the particulars were proved and, if so, whether the conduct in issue amounted to professional misconduct. On that phase of the Tribunal's inquiry, "illegal purpose" was irrelevant because of the way in which the charge was framed. [46] There were three problematic consequences of the Tribunal's consideration of "illegal purpose" on the first phase of its inquiry. [47] First, the "illegal purpose" finding was correctly made on the basis of the civil standard of proof, the balance of probabilities: see Z v Dental Complaints Assessment Committee. Serious criminal behaviour was inferred, possibly involving Dr Cullen in being a party to the manufacture of Methamphetamine, a charge which would carry a maximum penalty of life imprisonment. But, the finding was not reached on the criminal standard of proof, beyond reasonable doubt. Nor was there any opportunity for Dr Cullen to be tried by jury, a standard and important feature of our criminal justice system: for example, see R v Wong [2008] 3 NZLR 1 (SC) at [8]. [48] Second, Dr Cullen faced difficult decisions in electing whether or not to give evidence if the "illegal purpose" point was in issue on the first phase of the inquiry. He was entitled to object to answering questions on the grounds that answers may incriminate him: generally, see Rishworth et al, The New Zealand Bill of Rights(Oxford University Press 2003) at Chapter 23 and s 60 of the Evidence Act 2006. [49] This consequence assumes some importance given the Tribunal's reliance on two decisions of this Court, in holding that there was an obligation on Dr Cullen "to provide a proper explanation for his conduct": para 129 of the Tribunal decision set out at [19]. [50] In Re C (A Solicitor) [1963] NZLR 259 (HC), Hutchison J, with whom Haslam and Leicester JJ agreed, said:I wish first to say, as a matter that has relation to a number of the charges that were made, that I do not accept Mr Arndt's submission that a case before the Disciplinary Committee is to be dealt with on the same basis as a criminal trial. When a practitioner is charged before the Disciplinary Committee with professional misconduct and a prima facie case is made against him, in my opinion the practitioner is not justified in simply saying the charge is not proved beyond reasonable doubt, but must be prepared to answer the charge against him; and this, I think, is consistent with what was said by Scott L.J. delivering the judgment of the Court of Appeal in the case to which Mr Evans-Scott referred, In re a Solicitor [1945] 1 K.B. 368, 374; [1945] 1 All ER 445, 449.That approach was followed by Hardie Boys J, in Auckland District Law Society v Leary (High Court Auckland, M1471, 12 November 1985) at 18-19. [51] Third, a finding of "illegal purpose" is one for which Dr Cullen has no right of redress through defamation proceedings. Yet, it was a finding that was announced in public. [52] Anything said in a decision of the Tribunal is protected by absolute privilege. Section 14(1) of the Defamation Act 1992 provides:Absolute privilege in relation to judicial proceedings and other legal matters(1) Subject to any provision to the contrary in any other enactment, in any proceedings before— (a) A tribunal or authority that is established by or pursuant to any enactment and that has power to compel the attendance of witnesses; or (b) A tribunal or authority that has a duty to act judicially,— anything said, written, or done in those proceedings by a member of the tribunal or authority, or by a party, representative, or witness, is protected by absolute privilege. .Absolute privilege attaches to the Tribunal's decision because it was established by an Act of Parliament and has the power to compel the attendance of witnesses: s 14(1)(a). I am also satisfied that the Tribunal has a duty to act judicially. That brings it within the scope of s 14(1)(b).[53] I refer also to Lord Diplock's observations in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 667:So whatever is written about anyone to his discredit in the report of a Commission so constituted is the subject of absolute privilege under the law of defamation, devoid though the allegation may be of any factual foundation and notwithstanding (though this is not suggested in the instant case) that it also be inspired by malice. So he who has been traduced is deprived of any remedy by way of civil action to vindicate his reputation.The Privy Council was speaking of a Royal Commission. But, s 14(1) of the Defamation Act means that the point is equally well made in the context of the Tribunal's decision in this case. [54] On the other hand, the Committee could have brought a charge which put "illegal purpose" directly in issue. It could have proceeded with that charge or Dr Cullen could have sought judicial review to determine whether such a charge was an abuse of process, on the grounds that it undermined the criminal justice process: seeZ v Dental Complaints Assessment Committee, in particular at [125]-[133] per Blanchard, Tipping and McGrath JJ. If there had been a challenge, the evidence was more than sufficient to justify suspension of Dr Cullen while those challenges were live. The public interest in protecting members of the public could have been achieved in that way. [55] Alternatively, the Tribunal could have limited its consideration to the specific charge but sought evidence on motive or purpose when it considered questions of penalty. At that stage, if Dr Cullen had declined to give evidence, the Tribunal would have been entitled to determine the seriousness of the conduct by reference to all evidence available to it. [56] In my view, having regard to the nature of the charge, the Tribunal ought not to have made a finding of illegal purpose. For that reason, I base my conclusion on professional misconduct squarely on the "reckless disregard" ground. That is the context in which I consider the penalty appeal.The penalty appeal[57] The Tribunal found that the conduct of Dr Cullen required an order cancelling his registration as a medical practitioner. Its reasons for reaching that view are set out in the written decision of 6 December 2007. [58] The remedy of cancellation was considered in the context of Professional Conduct Committee v Martin (High Court Wellington, CIV 2006-485-1461, 27 February 2007, Gendall J). In that case, Gendall J said:[23] Obviously striking off or suspension has a punitive effect. However, that is not necessarily the purpose of the order. A professional (e.g. lawyer or accountant) who steals from clients and who is imprisoned is usually de- registered so as to maintain professional standards and deter others. That he/she is punished by the disciplinary penalty is a consequence of the order but not necessarily why the order should be made. It is made for the primary purpose of protecting the public and community by upholding proper professional standards, deterrence (both specific and general), ensuring only those who are fit, in the widest sense, to practise are given that privilege. [59] The Tribunal said:165 In short, the central issue at the penalty stage is to ensure the proper protection of the public, and to maintain the high standards and good reputation of the profession. 166 Viewed in that way, there is no doubt that the only order which the Tribunal can make, given the very serious misconduct under review, is one of cancellation of Dr Cullen's registration. There is no other possible outcome. 167 The Tribunal would have been prepared to find that cancellation was inevitable, even without the conclusion that substantial volumes of pseudoephedrine were being acquired for an unlawful purpose. At paragraph 103 of this decision, the Tribunal referred to the very serious situation which was made out – prior to consideration of that issue. It referred to: 167.1 The vast quantities of sudomyl tablets obtained by Dr Cullen over an extended period. 167.2 Examples of inappropriate prescribing. 167.3 Entries in patients medical notes when sudomyl was not in fact given to patients.167.4 The very significant risk of diversion of sudomyl tablets for illicit purposes given the extended period over which the prescribing occurred. 167.5 The fact that the prescribing came to the attention of the authorities in April/May 2004, but Dr Cullen continued to acquire sudomyl in significant quantities. 168 For these reasons alone, cancellation for the purposes of protecting the public would have been justified. But having regard to the totality of the established conduct, a cancellation order is inevitable.[60] To succeed on this aspect of his appeal, Dr Cullen must persuade me that the combination of cancellation of his certificate of registration, fines and costs represented a manifestly excessive penalty. I agree with the Tribunal when it held (para 167) that cancellation of registration was inevitable, irrespective of the finding of "illegal purpose". The volume of prescribed drugs and the risk of diversion of them for illicit purposes are two grounds that amply support the cancellation penalty. [61] I am satisfied that the Tribunal was right to cancel Dr Cullen's registration, and to impose a fine and to order costs. This ground of appeal fails. [62] Mr Carruthers, understandably, raised some concern that, if the "illegal purpose" finding were not appropriate, it might be possible for Dr Cullen to seek revocation of the cancellation order under s 99 of the Act. Section 99 provides:Application for revocation of order under section 95 or for making of order under section 98(1) Any person may apply to the Tribunal for the revocation of an order under section 95 or for the making of an order under section 98(2)(b). (2) The application may be made by a person who was a party to the proceedings in which the order was made, or any other person. (3) The Tribunal may grant or refuse the application as it thinks fit.[63] In my view, motive or purpose is not only relevant but an important aspect of the revocation jurisdiction. If Dr Cullen were to seek revocation of the cancellation order, it would be incumbent upon him to provide evidence to explain why the conduct the Tribunal found to be proved was undertaken by him. If that evidence were not available, the likelihood is that the Tribunal would refuse the application under s 99(3).Result[64] For the reasons given, the appeal against the finding of professional misconduct and the penalties imposed are dismissed. [65] The appeal is limited to the orders of professional misconduct and the penalties imposed: s 106(2) of the Act. Accordingly, I am not entitled to make any declaration in relation to the "illegal purpose" finding, or to set it aside. I content myself with expressing my conclusion that the Tribunal ought not to have considered and made finding on the "illegal purpose" issue, in order to determine whether the charge before it had been proved. [66] Dr Cullen has failed on his appeal against the finding of professional misconduct or the penalties imposed. For that reason, costs must follow the event. Dr Cullen is ordered to pay costs to the Committee on a 2B basis, together with reasonable disbursements, both to be fixed by the Registrar. I certify for second counsel. ____________________________ P R Heath J Delivered at 3.00pm on 14 November 2008