CULLEN v THE CHIEF EXECUTIVE OF THE MINISTRY OF HEALTH [2018] NZHC 764

CULLEN v THE CHIEF EXECUTIVE OF THE MINISTRY OF HEALTH [2018] NZHC 764 [20 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1750[2018] NZHC 764BETWEEN RHYS MICHAEL CULLENApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF HEALTHRespondentHearing: 20 April 2018Appearances: Dr R M Cullen in PersonS P Jerebine and T C Burgess for RespondentJudgment: 20 April 2018JUDGMENT OF JAGOSE JThis judgment is delivered by me on 20 April 2018 at 4 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Crown Law, WellingtonApplicant:Introduction[1] The applicant, Dr Cullen, was formerly a medical practitioner before he wasderegistered in 2007. He has continued to run a diabetes clinic, offering advice todiabetic patients.[2] The Ministry of Health recently expressed the view to Dr Cullen aspects of hisonline presence, in combination, implied he is still practicing as a medical practitioner.Dr Cullen seeks declarations in response.[3] The declarations are sought notwithstanding the Ministry's invitation DrCullen comment on those allegations. Although he later provided such comment, thatwas not in evidence.Background[4] The Ministry's view and invitation was expressed in a letter dated 16 May 2017(the "letter"):Health Practitioner Competence Assurance Act 2003The Ministry of Health has received a complaint in which it is alleged youmay have committed an offence against section 7 of the Health PractitionerCompetence Assurance Act 2003.Section 7 of the Act makes it an offence to use names, words, titles, initials,abbreviations, or descriptions stating or implying that an unregistered personis a registered health practitioner.Section 7(1) states:"A person may only use names, words, titles, initials, abbreviations,or descriptions stating or implying that the person is a healthpractitioner of a particular kind if the person is registered, and isqualified to be registered, as a health practitioner of that kind".Section 7(2) states:"No person may claim to be practising a profession as a healthpractitioner of a particular kind or state or do anything that iscalculated to suggest that the person practises or is willing to practisea profession as a health practitioner of that kind unless the person—(i) is a health practitioner of that kind; and(ii) holds a current practising certificate as a health practitionerof that kind."As you are no longer registered you must be very careful to not imply you area registered health medical practitioner.I note on your home page you state "in 2006 I was a full time medicalpractitioner with an interest in researchnow my medical practice is parttime".On your blog you comment that "if you visit a convictional doctor" and youalso talk about "best practice for medical doctors".It is the Ministry's view that these online references combine to imply you arestill practicing as a medical practitioner.It is important you are aware of your obligations under the Act, and ensure thetitles and descriptions you use, do not cause any confusion.The Ministry's approach in enforcing the Act is to first seek compliance. Incases where persons are unwilling to comply with the Act, the Ministry mayseek to prosecute. Prosecutions under section 7 carry a fine of up to $10,000.Could you please comment on these allegations by 26 May 2017 and anyplans you have to ensure your online presence complies with the Act?The Ministry administers the Health Practitioner Competence Assurance Act 2003 (the"Act"). Section 7(5) provides: "Every person commits an offence punishable onconviction by a fine not exceeding $10,000 who contravenes this section".[5] The declarations sought were:(a) the applicant's use of the title "Doctor" in the context of his provisionof health services does not breach s 7(1);(b) the applicant is not practising a health profession;(c) the phrases mentioned in the letter – "in 2006 I was a full-time medicalpractitioner with an interest in research now my medical practice ispart-time", "if you visit a conventional doctor", and "best practice formedical doctors" – do not breach s 7(2); and(d) material hosted on a server based outside New Zealand cannot be inbreach of s 7(1) or s 7(2). Statements made outside New Zealand by aperson resident outside New Zealand cannot breach s 7(3).[6] During his submissions, Dr Cullen abandoned the declarations sought at [5](d)above. Sarah Jerebine appeared for the respondent. During her submissions inresponse, Dr Cullen abandoned the declaration sought at [5](b) above.Discussion[7] The Court's jurisdiction to give declaratory relief is broad, but its discretion todo so is exercised carefully.1 Of relevance here is the approach taken in Ambrose vAttorney-General, in which Winkelmann J observed:2Courts have traditionally proceeded with great caution when exercising thediscretion to issue declarations as to whether or not certain conduct amountsor will amount to the commission of a criminal office. This is because to makesuch a declaration risks usurping the function of the criminal court (includingthe function of a Judge or a jury to find the facts). As Lord Lane put the matterin Imperial Tobacco v Attorney-General:The criminal court would not be bound by the decision. In practicalterms it would simply have the inevitable effect of prejudicing thecriminal trial one way or another.[8] Her Honour declined to provide declaratory relief in comparablecircumstances, given:3 the inadequacy of the evidentiary material before [her] to reach such a view,and in any event, the inappropriateness of [her] undertaking a mini trial as towhether certain conduct constituted a criminal offence, when exercising theCourt's civil jurisdiction, and in advance of a police investigation or trial.[9] Dr Cullen sought to convince me the declarations he sought were not context-dependent, but instead open to being granted by reference to the Ministry's letter andinterpretation of the Act's s 7 alone. But the first declaration he seeks expressly refersto "the context", and the word "use" in that sought declaration also requires contextualsupport. Similarly, he argued for the other declaration he sought by reference to afurther statement on his website he was "no longer registered as a medical practitionerin New Zealand".1 Re Chase [1989] 1 NZLR 325 (CA) at 333.2 Ambrose v Attorney-General [2012] NZAR 23 (internal citations omitted) at [36].3 At [55].[10] Plainly the context of Dr Cullen's conduct is critical in determining whether ornot that conduct breaches s 7. The Ministry's letter is clear it has only formed apreliminary view as to that conduct, from which it may conduct further investigation,subject to Dr Cullen's invited comment. I have only the most skeletal of evidence ofthat context, which is for the Ministry to investigate. Ms Jerabine advised theMinistry's investigation has paused, pending this Court's determination of Dr Cullen'sapplication for declarations.[11] Even had I adequate (agreed or uncontested) evidence on which to considermaking the declarations sought, the exercise of that discretion would still beinappropriate in circumstances in which I must make an evaluative assessment of thatevidence in this civil proceeding as to its relevance in criminal proceedings. And mydeclarations would doubtless influence the Ministry in the exercise of its ownprosecutorial discretion, and any court subsequently engaged by it. The improprietyof such influence is a further factor against the exercise of my discretion.Result[12] For those reasons – the absence of relevant evidence on, and theinappropriateness of declaratory relief in, the circumstances – I decline Dr Cullen'sapplication.Costs[13] I heard no submissions on costs. In principle, the unsuccessful party shouldmake a contribution to the successful party's legal expenses, in accordance with scale,in an amount no greater than was incurred by the successful party – to the end "so faras possible the determination of costs should be predictable and expeditious".4[14] In my preliminary view, Dr Cullen should be liable to pay 2B costs to therespondent, including for two counsel, and actual and reasonable disbursements ascertified by the Registrar. If that is not accepted by either party, and costs cannototherwise be agreed between them, costs are reserved for determination on short4 High Court Rules, r 14.2.memoranda of no more than five pages – annexing a single-page table setting out anycontended allowable steps, time allocation, and daily recovery rate – to be filed andserved by:(a) the respondent within ten working days of the date of this judgment;(b) Dr Cullen within five working days of service of the respondent'smemorandum; and(c) the respondent strictly in reply within five working days of service ofDr Cullen's memorandum.—Jagose J