The Wislang Case

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The Wislang Case

Competence Assurance at Large

Amongst the end products of the disciplinary proceedings against Dr Wislang, of greatest concern must be the mis-assessment, by the tribunal and the Medical Council, of his medical competence. That mis-assessment became the principal point on judicial review carried through to the Court of Appeal and eventually to the Privy Council.

However, Dr Wislang’s deep concern about the assessment of medical competence quickly became far-sightedly impersonal as well, extending to the assessment of competence of medical practitioners in general. This led him to make submissions on the subject, in person in 2001, before the New Zealand Parliamentary Select Committee on Health which at the time of his judicial review proceedings, had before it the Health Practitioners Competency Assurance Bill, soon to be passed into law.

When passed, the new legislation would replace the Medical Practitioners Act 1995 under which Dr Wislang had been prosecuted. It came into force in 2003.

In his submissions to the Select Committee on Health, Dr Wislang pointed out that the new Act (at that time in Bill form) like the Medical Practitioners Act itself, gave no definition of the term competence, prescribed no means of establishing standards for competence, and laid down no procedure to be followed for establishing the parameters of and the criteria for the assessment of competence.

In the light of those omissions, and the perceivable dangers to public safety he asserted they must incur, Dr Wislang made a case for the new Act to contain a section requiring each of the several health practitioners regulatory bodies operating under the Act to make regulations to make good those omissions.

Because the alleged mis-assessment of Dr Wislang’s competence was to be the main point of his appeal to the Privy Council, when he went before the Court of Appeal in June 2002 to personally argue his case for that court to grant leave to appeal to the Privy Council, he pointed out the abovementioned omissions in the Medical Practitioners Act and the upcoming Health Practitioners Competence Assurance Act. Dr Wislang then asserted to the court that the means of the defining of competence and the criteria of assessment of competence, being both so central to his case and relating as they do so strongly to public safety, were matters of public importance justifying a ruling upon them by the Privy Council through its hearing of his appeal.

He proposed further to the Court of Appeal that it would be highly desirable for the new Act to require regulations to be made for the prescribing of the parameters and means of assessment of competence by each of the health practitioners agencies working under the Act. In doing that, Dr Wislang was well aware of the attention paid by the legislature of New Zealand to opinions expressed by the Court of Appeal on matters of public importance such as Health and Safety.

In his submissions both written and oral before the Privy Council, Dr Wislang pressed the same point, which did not meet with any counter argument from counsel representing the Medical Council. In his written opinion for the Privy Council, Lord Simon Brown makes no reference at all to the point which, like so many others in the Wislang case, can be seen to have been comfortably buried.

Not surprisingly, when, many months before the Privy Council's passing over of the point, the Health Practitioners Competence Assurance Bill passed its final reading in Parliament and  was given the  Royal Assent and entered into law, it incorporated no requirement for the making of even a single regulation in respect of the establishment of the parameters and procedures for  the assessment of health practitioner competence, the safeguarding of which, in the public interest, the new Act by its promising title is supposed to achieve.

Published Sunday, May 28, 2006 4:29 PM by admin
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