The Wislang Case

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Preface to Submissions of Appellant

Preface to Submissions of Appellant

This case is a salutary example of how a single initial error, able to be called a precipitating error, fallen into by a tribunal at the outset of its inquiry can cause a cascade, even a calumny, of further errors in its deliberations.

In the appellant's case, all but a few of the further errors in the proceedings of the Medical Practitioners Disciplinary Tribunal in one way or another contributed to that which was wrong with its interim and final decisions and, finally, to the unjust overall result of its proceedings. Most regrettably, the effects of those further errors either went unrecognized or were strangely minimised by the Tribunal, and were inadequately addressed by the dismissing High Court judgment on judicial review and by the Court of Appeal judgment subject of this appeal.

The precipitating error was the Tribunal's wrongly accepting, and for a crucial period entertaining, a misconceived amended charge which was irregularly laid before the Tribunal by the prosecuting counsel for the Complaints Assessment Committee.

As detailed in paragraphs 92 to 113 below, the amended charge was invalid not only by reason of its wrong form and its amending part's total lack of foundation in fact, but also because of the illegal process by which it was laid before and accepted by the Tribunal.

The further errors which resulted from the amended charge being entertained, albeit temporarily, by the Tribunal were multiple, legally vexing, time-wasting and far reaching in their worst effects; which included a crucial influencing of the Tribunal in its wrongly judging the appellant to be medically incompetent, and in its decision on penalty and costs.

The flawed and serious impugning of the appellant's medical competence by the Tribunal in its decision, through the immediate and persisting publication of its decision nationally and internationally by the Tribunal, continues to unwarrantedly and gravely prejudice the appellant's professional reputation and ability to earn a living as both a doctor and university lecturer.

It is the persisting, maximally published, unjustified opprobrium by the Tribunal of the insight and judgment, and therefore of the competence and/or fitness to practise medicine, of the appellant which in his submission and deep personal and professional concern is the most damaging part of its decision and pre-eminently warrants being declared invalid or, in the alternative, quashed by way of an order on review.

Finally, the wholesale adoption by the Medical Council of the erroneous parts of the Tribunal's decision led the Council itself to unjustifiably further impugn the competence of the appellant, and to wrongly decide that a new practising certificate the appellant had applied for should be subject to certain conditions which he submitted through counsel, to the Council and the Courts below, were unnecessary, impractical, and even oppressive. The adverse mis-finding by the Council on the competence of the appellant ought, in his submission, to also be declared invalid or, in the alternative, quashed by way of an order on review.

The following submissions are provided under the headings "Submissions to Court of Appeal" and "Further Submissions". The submissions under the first heading are the written ones presented to the Court of Appeal by Dr GDS Taylor, counsel for the appellant on appeal against the dismissal of an application to the Wellington High Court for judicial review of the decisions of the Tribunal and the Medical Council. The page and line references in them have been adjusted to correspond with the Record in the present appeal; they are otherwise unaltered. They include a Chronology, beginning at page 10 of the present combined submissions.

The submissions of Dr Taylor to the High Court, which are referred to in his ones to the Court of Appeal, are attached as the APPENDIX to these submissions.

The submissions under "Further Submissions", beginning page 43, are those respectfully offered by the appellant on key aspects of the judgment subject of this appeal. They refer to case law additional to that cited by Dr Taylor, and are made under the sub-headings