An Oddity of New Zealand and British Justice: the refusal of judicial review of two highly adverse, illegal assessments of medical competence.
Privy Council Appeal Case No. 3 of 2003
Hearing of Appeal 12th November 2004
Opinion delivered 16th December 2004
Queen's Order in Council made 16th December 2004
MILES ROGER WISLANG
MEDICAL COUNCIL OF NEW ZEALAND
MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
COMPLAINTS ASSESSMENT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND
AT ISSUE: Competence, Insight and Judgment, medical and judicial, in the context of Judicial Review.
KEY POINTS: judicial review – medical practitioner – lapsed practising certificate – disciplinary proceedings – illegal amendment of charge – tribunal's decision contaminated by entertainment of illegal charge - mis-assessment of competence – Medical Council conditions of future practice – internet publication of tribunal findings – damage to professional reputation and employability – Medical Council's defamatory interim notifications internationally of false charge of disgraceful conduct in a professional respect - false charge notifications not corrected by Medical Council despite Court of Appeal directive - practitioner's appeal to Privy Council disallowed
Open and Shut Cases
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
- Sir Robert Megarry, Vice Chancellor, from his judgment in John v Rees  Chancery Division, High Court, London
"The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legislation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do?"
- Mr Quintin Hogg QC (later Lord Chancellor Hailsham of England) in "Punch"; commenting on
R. v. Commissioner of Police, ex parte Blackburn  Court of Appeal, London
It is gravely concerning that the New Zealand administrative courts and the English Privy Council, by their decisions in the Wislang case, have degraded the utility of Judicial Review as the appropriate remedy for the control and correction of perverse decision-making caused by procedural error, especially in the field of medical disciplinary adjudication when the practitioner's medical Competence, professional reputation and the right to work are paramountly at issue.
In his written judgment for the Privy Council, Lord Simon Brown fails completely to answer the reasonable and carefully worked submissions of the appellant, hitherto unheard in person, on the principal point of his appeal; namely, the determination of Competence. Instead Lord Brown unreasoningly brushes those submissions aside, making them appear to be of no merit or importance whatever.
By its decision achieved by such means in this case, the Privy Council has handed to the New Zealand Medical Council, and other medical regulatory bodies, the unchallengeable right and unfettered power to make off-the-cuff, casual determinations of medical competence entirely outside any and every statutorily prescribed procedure for its determination.
Whilst it must be accepted that reasonless rubber stamping of the decisions of the court below is within the prerogative of the Privy Council, the impact of such an approach in this case may be seen, firstly, as carelessness towards administrative decisions repugnant to public policy and, secondly, as incurring a real risk of undermining public confidence in the administration of justice.
Here now are Dr Wislang's Case on Appeal and Opening Submissions to the Privy Council.