The Wislang Case

IN HER MAJESTY QUEEN ELIZABETH’S PRIVY COUNCIL, LONDON, ENGLAND
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The Wislang Case

  • IAMRA 2006 and those "attitudes"

    This month, November 2006, the Medical Council of New Zealand plays host to key sessions of the 7th conference, in Wellington, of the International Association of Medical Regulatory Authorities (IAMRA). This will provide the Council, as the registering and regulatory body for New Zealand's medical practitioners, with an opportunity to showcase its approach and arguable achievements in the field of the regulation of medical practice. The Council's current president, Professor AJ Campbell, will deliver an opening address. Seven other members of the 11-strong Council, as well as its chief executive officer, Mr Philip Pigou, will chair sessions of the conference.

    Of special interest to overseas delegates at the conference may be the  innovation of the Medical Council of New Zealand in the matter of its including the '"attitudes" of medical practitioners as elements of their competence.

    It was around 1999, that is during the nine-year presidency of Dr MAH (Tony) Baird, that alleged "attitudes" of medical practitioners appear to have become incorporated into the elements of medical competence as determinable by the Medical Council of New Zealand. To give an example, it was the "attitudes" (unspecified) of Dr Wislang which were criticised in a written decision by the Council in September 2000 as part of its unjustifiable condemnation of his medical competence, which became such an issue in his case on judicial review which went to appeal to the Privy Council of England. The matter of "attitudes" was, together with other Council-claimed elements of of competence, clearly and convincingly dealt with by Dr GDS Taylor, counsel for Dr Wislang, in his written submissions (see pages 26 and 30) to the High Court at first instance.

    The inclusion of "attitudes" as an element of medical competence was explicitly claimed, under "What is meant by Practice of Medicine" in the Council's 2001/02 Guide to completing its Annual Practising Certificate Application & Workforce Survey. The Guide, which clearly has President Baird's fingerprints all over it, states that the practice of medicine includes

    "treating, reporting or giving advice in a medical capacity, using the knowledge, skills, attitudes and competence initially attained for the MB ChB degree (or equivalent) and built upon in postgraduate and continuing medical education, whenever there could be an issue of public safety. "Practice" in this context goes wider than clinical medicine to include teaching, research, medical or health management, in hospitals, clinics, general practices and community and institutional contexts, whether paid or voluntary"

    Quite a claim, and provably incorrect in respect of, at least, teaching and research.

    Dr Baird's interest in "attitudes" had surfaced earlier in his originating and advocating of a strangely inspired system for the detection of medical practitioners who could be tempted to transgress professional boundaries and enter into sexual relationships with their patients (gender unspecified). One must not assume that it was Dr Baird's being a gynaecologist, and possibly jealous of the rules of conduct of such a specialist in his dealings with female patients, that led to his proposing that potentially sexually irresponsible practitioners should be clandestinely visited by mystery or surrogate (that is, undercover) "patients" who, acting as investigators of a sort, would in conversation and perhaps other ways probe the target practitioner's susceptibility to sexual misconduct with patients and report them to Dr Baird's Council.

    Dr Baird's madcap and sinister solution to the problem of sex-prone doctors---reminiscent of Nazi Gestapo and other iniquitous methods of covert investigation---was received by right-minded people, including doctors, with the disdain and disgust it deserved and was understandably howled down and never instituted. Such a devious and disgracing suggestion should, of course, have resulted in the dismissal of Dr Baird as president of the Council. Regrettably, and perhaps significantly, it did not. But in respect of "attitudes", presumably still including sexual ones, Dr Baird's alarmist approach continued alive and well in the Council's casing (irregularly in the case of Dr Wislang) of the competence of certain practitioners.

    The above very recent history of the development of the New Zealand Medical Council's approach to "attitudes" should, it is suggested, be of considerable concern to members of IAMRA and, more particularly, to overseas delegates to this month's conference in Wellington. Especially as IAMRA , as quoted in Career Focus  of the British Medical Journal 2005;331:170-171, in an article entitled "You show me yours and I'll show you mine---medical mobility and regulatory cooperation" has cited the New Zealand Medical Council as enjoying a special relationship with the General Medical Council of Great Britain in information-sharing of the most sensitive kinds concerning allegedly delinquent doctors.

    "IAMRA and the international experience

    These issues are not unique to Europe, so it is worth looking at what we can learn from others. The International Association of Medical Regulatory Authorities (IAMRA) was established in 2000. Its purpose is to support medical regulators worldwide in protecting the public interest by promoting high standards for medical education, licensure, and regulation, and facilitating the exchange of information. It has a membership of 73 regulators from 30 countries and is supporting policy analysis, research, and sharing of best practice across a range of regulatory activities. Two areas are relevant to the present discussion-the development of a fast track credentials system (FTCS) and the sharing of information about doctors' fitness to practise.

    FTCS
    For many years, medical regulators have required doctors who wish to practise in their territory to provide certificates of their good standing issued in the countries where they have been practising. These confirm that an individual is not subject to disciplinary proceedings in those countries. But it is difficult to guard against the use by doctors of fraudulent certificates. Even where the system works well, the transmission of documents from one country to another can be slow, meaning that doctors' registration may be delayed. To address this problem, two IAMRA members, the GMC and the Medical Council of New Zealand, began piloting the electronic exchange of encrypted data directly between regulators. The GMC has since begun to operate the same system with a number of EU regulators.

    Meanwhile, the GMC/New Zealand project is being extended to include other countries and support the electronic transmission of a wider range of information (including qualifications, date of birth, sex, photograph, and passport number) intended to enable the host regulator swiftly and confidently to verify the credentials of a migrating doctor. In future, it will not be so easy for Dr A to ply his trade across the world.

    Sharing of fitness to practise information
    But providing information in response to a request is only half the answer. If Dr A does not tell you where he has been, you may not know who to ask for information. Further, doctors often maintain registration in two or more countries simultaneously, making it easy for them to move between jurisdictions without having to undergo the checks of their good standing that would be made at the point of entry to the register. Regulators must therefore be more proactive in the way they engage with others to ensure that those who are unfit to practise cannot use their professional mobility to flee one jurisdiction only to put patients at risk in another.

    A central database containing details of disciplinary sanctions imposed is sometimes offered as the solution. IAMRA's experience shows that, although technically feasible, it is unreliable if regulators are unwilling to post information on the database. It is also poor at targeting information to where it is most likely to be useful. IAMRA is now looking at how regulators can adopt an approach based on risk assessment to disseminate information more accurately to those who most need to know."

    Dr Wislang, 7 years ago and unknown to him, became a victim of the New Zealand Medical Council's information-sharing with the General Medical Council of Great Britain and no fewer than 10 other medical regulatory authorities throughout the world. That was when the Medical Council of New Zealand twice, falsely and secretly, internationally notified its disciplinary charge against Dr Wislang as being one of "disgraceful conduct in a professional respect" (for a never specified but easily imaginable misdemeanour), instead of the actual and much lesser one of professional misconduct deriving from his failure to renew his annual practising certificate.

    We are reliably informed that the Council has not yet taken the trouble to correct its gross mis-informing of the 11 overseas medical regulatory authorities involved, despite that, in April 2002, it was directed to do so by the Court of Appeal of New Zealand.

    Information sharing between medical regulatory authorities internationally, to be mutually useful and not unwarrantedly professionally damaging, must be, firstly, accurate and, secondly, communicated for proper purposes, not malicious or cloak-and-dagger ones; and not recklessly. In the case of Dr Wislang and the Medical Council of New Zealand one or all of the latter three appears likely.

    It should raise serious concerns with the other members of IAMRA, and with medical practitioners worldwide, that at least the Medical Council of New Zealand can go so bizarrely and unconscionably wrong with its information-sharing about disciplinary charges and convictions against medical practitioners, and presumably the "attitudes" of the latter divined and pronounced upon by the likes of Dr Baird for reasons apparently all of his own.

    We would think it strange if it were not open to the IAMRA 2006 conference to consider that the attitudes and administrative activities of medical regulatory authority presidents such as Dr Baird, as a medical practitioner, ought to be subject to close examination and reasonable regulation in the interests of medical standards and safety worldwide, for reasons even more compelling than those applying to the practitioners that such administrators---relying at least in part on their medical expertise---regulate and presume to report upon. Or are certain self-styled medical police chiefs---as against  bone fides medical administrator doctors---to be presumed to be forever undoubtable as to their skills, attitudes and motivations in their deciding upon medical regulatory matters of such vast importance as IAMRA is canvassing at its current conference?

    We think not.

  • Ultra Vires Unleashed

    If the incaution shown towards it by the Privy Council in its opinion on the Wislang case is anything to go by, after more than three hundred years of increasing control of it through countless learned judgments on judicial review and its English predecessor procedures, the vice of Ultra Vires is at risk of becoming the AIDS of administrative law.

    This dire prediction derives from the only two possible answers to the most important question raised by the decision of the Privy Council in the Wislang case;

    "How did it escape the attention of no fewer than five of Her Majesty Queen Elizabeth's Privy Councillors - all vastly experienced judges on the Judicial Committee of the House of Lords - that the principal finding that Dr Wislang was appealing to them to judicially review, namely, an assessment of his medical competence by the Medical Practitioners Disciplinary Tribunal, had been made in flagrant disregard of the fact that the Act constituting and prescribing the functions and duties of that body gave it no power whatever to make any such assessment?”

    or, more shortly,

    "How did their Lordships fail to see that the Tribunal, in purporting to make an assessment of Dr Wislang's medical competence, was acting entirely outside its jurisdiction and thus ultra vires, and that its finding on his competence, overall or on any supposed element of it, was therefore a nullity?"

    The need to put this question is all the more "regrettable" by reason of Dr Wislang, in his carefully worked submissions on Competence, having plainly claimed to the Privy Council that the Tribunal's purported assessment of his medical competence was, on the ground of it having being made ultra vires, a nullity and stood to be quashed on appeal.

    He had additionally claimed to the Privy Councillors that, because it was based primarily on the assessment of the Tribunal, the subsequent assessment of his competence by the Medical Council was also a nullity.

    Dr Wislang's argument on his ultra vires point was developed clearly (perhaps too clearly) in paragraphs 147 through to 161, inclusive, of his written submissions; under the heading "Determinations of Competence Invalid".

    Astonishingly, Lord Simon Brown in his written opinion delivered for the Privy Council unanimously recommending to Her Majesty that Dr Wislang's appeal be dismissed, makes no reference whatever to the ultra vires point; not even indirectly in any declining response to Dr Wislang's final request, in the last paragraph of his submissions, that the ultra vires assessments of his competence by the Tribunal and the Medical Council be declared invalid or, in the alternative, quashed.

    What their Lordships appear to have overlooked is that the Medical Practitioners Act 1995 conferred upon one body and one body only the power to make an assessment of medical competence in the course of disciplinary proceedings against a practitioner. That body was the Complaints Assessment Committee, and any purported asessment of Dr Wislang's competence by any body other than the Committee, including the Tribunal and even the Medical Council itself, would be a nullity by reason of it having being made ultra vires.

    In the event, after it had assessed the patient complaint against Dr Wislang, the Committee expressed no concern about his competence; nor did it recommend to the Medical Council, as it was in cases of doubt required to, that his competence be formally reviewed under the procedure for that prescribed by the Act. Nor did it recommend that Dr Wislang's fitness to practise be formally reviewed, or that his medical registration be suspended.

    In other words, the Complaints Assessments Committee found that Dr Wislang's medical competence suffered from no deficiency that might cause his practising in his field to prejudice the health or safety of patients or the public. That finding of the Committee concurred with that of the Health and Disability Commissioner who, at the Medical Council's earlier referral of it to her, had inquired into the original patient complaint against Dr Wislang and had decided that no action needed to be taken in respect of his standards and competence of medical practice.

    All the Committee did then was to correctly frame and lay before the Tribunal a single and simple charge; that he had practised without a practising certificate; a charge which Dr Wislang admitted promptly, in fact five months prior to the Tribunal's hearing of him as to the penalty to be imposed.

    By reason of the Committee having already assessed it, the medical competence of Dr Wislang, notwithstanding the Tribunal's presumptuous and illegal seizing of jurisdiction to subsequently re-determine it, was, as an issue in relation to the remaining stages of the disciplinary proceedings against him, fairly and squarely res judicata.

    Sections 97, 104 and 110 of the Act describe the functions, duties and powers of the Tribunal. Plainly, they did not include the power to conduct reviews of medical competence.

    The only body, that being the Medical Council, empowered by the Act to require (but not to make) reviews of competence did not at any time require one to be undergone by Dr Wislang. Instead, it unflinchingly adopted and applied the findings of the statutorily unauthorised assessment of his competence by the Tribunal.

    Neither did the Act empower the Tribunal to recommend at any time to the Medical Council that Dr Wislang's, or any other practitioner's, competence be reviewed. The power to so recommend was, for obviously good reasons, granted by the Act exclusively to the Committee.

    What was it that moved the Tribunal to include its damning, unauthorised determination of Dr Wislang's competence in its written Decision - meant to be limited to penalty only - and to promptly publish it on its internet website for all the World to see?

    Could it be that barrister Ms Wendy Brandon, chair-person of the Tribunal and writer of its Decision, simply got carried away?

    Or did the Tribunal think it had some extra-statutory higher duty to warn the public against Dr Wislang by posting on its website that he

    ".... had demonstrated such a degree of a lack of insight and judgment.....as to be a risk to the health and safety of members of the public"?

    Or did it think that its publication of its decision might encourage the Medical Council to pick it up and use it as its number one piece of evidence in support of its unauthorised determination that

    "your knowledge and skills of procedures and communication and and your attitudes (sic) and judgment is not of an acceptable level"

    to justify the imposing of conditions - gravely undermining of patient confidence in Dr Wislang - on his future practice?

    Surely, you may think, the Tribunal's purported assessment of Dr Wislang's competence cannot have been solicited from the Tribunal by anyone on the Medical Council for some improper purpose, such as cost-cutting on statutory reviews of Competence or of Fitness to Practise; or worse?

    But, not to disappoint anyone, even that is possible given that the last-quoted blunderbuss condemnation of Dr Wislang's competence by the Medical Council is so suspiciously in-style with the irrational outburst of President Dr MAH (Tony) Baird who chaired the meeting of the full Council at which Dr Wislang, assisted by his counsel Dr GDS Taylor, made submissions on conditions to be imposed on his future practice.

    What depended on the Privy Councillors getting it right on Dr Wislang’s ultra vires point? And why did they, by giving no reasons for their rejection of it, appear not to have addressed the point at all?

    Could it be that these two questions have but a single answer? We leave it to our readers to decide.

    Whatever the answer, gratis of the best efforts of the two lady barristers officiating at the Tribunal's supposed hearing of submissions as to penalty to be imposed on Dr Wislang, Ultra Vires undeniably had its day in court.

    But that villain of the piece could not have done its dirty work without the prompting of the show's undoubted star performer, opportunistic prosecutor Kate Davenport; her false charge against Dr Wislang being both the enticement and the excuse for the Tribunal to go wandering outside its jurisdiction to make its fateful decision on his competence.

    How disgracefully Dr Wislang was exceedingly punished by the world-wide publication of the Tribunal's ultra vires decision on his competence is embarrassingly plain to see.

    How graceless were the Privy Councillors in their refusing to quash that professionally devastating decision against him on his appeal in-person to Her Majesty, is even plainer.

    To some, the above criticism of the decisions of the tribunal and the courts in the Wislang case may appear to be unnecessary and out of order, or contemptuous, or perhaps just impolite. With respect, we do not think it is, but believe it to be highly necessary in the public interest and, if anything, warrants being even more strongly made.

    As John Chipman Gray wrote in "The Rule Against Perpetuities"

    "If a decision is wrong, one may say so, however learned or able the court that has pronounced it"

    and, concerning the decisions of the New Zealand Court of Appeal and the Privy Council in the Wislang case, we have said so.

    The imperative of saying so here has been expressed never more urgently than by one of England's greatest judges, Lord Alfred Denning, MR, in one of his most celebrated judgments; in R v. Medical Appeal Tribunal ex p. Gilmore [1957] 1 QB 574 at 586:

    "If tribunals were at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end"

    And who could disagree? Lord Simon Brown of Eaton-under-Heywood, deliverer of the opinion of the Privy Council in the Wislang case?

    If, as appears possible, he does, why did he not say so?

  • Kate Davenport's Mythical Legal Assessor

    Events in the Wislang case proved beyond reasonable doubt that prosecutor Kate Davenport's spectacular skill in concocting false charges is matched only by her ability to conjure up mythical legal personalities.

    Her personality of choice in the Wislang case was that of a sort of alter ego of the Ether, a consultant to herself, a supernumerary “legal assessor” in addition to the two earthly ones we know about, Ms Bronwyn Klippel and Mr Raynor Asher who were actually employed, for proper purposes, by the Complaints Assessment Committee and the Tribunal respectively.

    So persuaded was Ms Davenport by the competence and value of her fantasy figure that she invoiced the Tribunal for its services to the Complaints Assessment Committee. That body, along with its parent body the Medical Council, as far as we know has to date expressed no concern about the non-identity or actual role of this phantom of the piece.

    Not so Dr Wislang upon his noting, from the Tribunal's list of costs awarded against him, that the services of this very personal legal assistant of Ms Davenport had come anything but cheap; costing, according to her, $7831; that is, only a tad less than one third of the costs awarded against him by the Tribunal and more than 10 times the fee of $775 for the one-and-only real legal assessor, Ms Klippel, that the Complaints Assessment Committee had employed to help formulate their original, perfectly valid charge which Ms Davenport irregularly went on to have supplanted by her own false one.

    Dr Wislang's exposure of Ms Davenport's bogus legal assessor and her billing of the Tribunal for its services, was executed by an exchange of letters between him and Ms Davenport and the Tribunal. Upon Ms Davenport's forced admission that she had in fact taken no legal opinion at all warranting any of the expenditure she had billed the Tribunal for as legal assessor expenses, Dr Wislang requested that the Tribunal issue an Erratum to its costs bill; which it correctly and promptly did.

    There is a legal description, more familiar perhaps to laymen and specialists in criminal law than to Ms Davenport, given to the use of an invoice to claim money for knowingly never rendered services, even professional ones to statutory disciplinary bodies.

    Perhaps Ms Davenport, as part of her preparation to relinquish her lack-lustre role of prosecutor and ascend to the deputy chairmanship of the tribunal that she falsely billed in the wake of the Wislang case, has already brushed up on her accounting skills and somewhat refreshed her law-school memory on the law of fraud.

    But how would one know?

  • The Kate Davenport Disaster: Accident or Design ?

    When Dr Wislang appeared before the Medical Practitioners Disciplinary Tribunal for the agreed sole purpose of making submissions as to penalty on a simple charge he had already admitted to, he did so trusting that the Tribunal would conduct its hearing of him competently, in good faith and according to proper procedure and the principles of ordinary fairness.

    He had no expectation whatever, even from his worst dreams, that he would have to defend himself against a maximally more serious replacement charge, completely unsustainable in law, trumped-up and irregularly laid against him by a prosecutor who, with the full cooperation of the Tribunal itself was hell-bent on proving it in order to have him struck off the medical register and barred from the practice of medicine, not temporarily, but for ever after.

    Almost incredibly, that is what Dr Wislang was faced with on the day; a prosecutor-turned-hijacker of the Tribunal's proceedings whose charge-drafting and personal prosecutory maxims and potential excuses for her glaring misconduct in her prosecution of him can be justified by only one law; Murphy's.

    Unbelievable? We encourage you to READ ONLINE or DOWNLOAD as Adobe PDF

    (The facts proving Ms Davenport's prosecutory incompetence and presumptuouness are ones all agreed to by the active parties to the proceedings of judicial review by which Dr Wislang afterwards attempted to have the Tribunal’s adverse ruling on his medical competence quashed and to thereby rescue as much as possible of his professional reputation. Those facts are to be found on this website in the Exhibits part of the Record of those proceedings which was submitted for his appeal to the Privy Council)

  • 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.