Committee’s findings ‘invalid’

Press, 7 February 1985, Page 29

Committee’s findings ‘invalid’

PA "Wellington The Medical Practitioners’ Disciplinary Committee had not stopped to ask whether alleged breaches by Dr lan Duncan justified being stigmatised as professional misconduct, his counsel, Dr Rodney Harrison, has said.

He was making submissions before Mr Justice Jefferies in the High Court at Wellington where Dr Duncan, formerly of Whangamata, is seeking a declaration that the findings and orders of the committee in a written decision in February last year were beyond its powers, unauthorised and invalid. Dr Harrison referred to

the committee’s finding that Dr Duncan had been guilty of professional misconduct in that he breached professional confidence in informing lay people of a patient’s personal medical history. “In my submission the committee concentrated solely on the issue of whether an unjustifiable breach of professional confidence had been established, but it did not stop to ask whether the particular breach or breaches justified the conduct being stigmatised as professional misconduct. “I submit that the committee does not apply any test of professional misconduct at all.” “The committee had

power not only to find professional misconduct or to dismiss the charge but also to find a lesser charge of conduct not becoming to a medical practitioner,” Dr Harrison said. Dr Harrison submitted that it was crucial that the committee addressed its mind to the lesser alternative.

He said that Dr Duncan had acted in what he perceived to be an emergency and in answer to the dictates of his conscience. r Dr Harrison said that the medical condition of the patient in question was already widely known in the local community and known to. at least one of the lay

persons involved. The persons to whom communication was made were not total strangers but persons with a clear link to the danger perceived.

He submitted that there was nothing in the decision to indicate that the committee applied an objective test. If it failed to apply an objective test it had quite plainly erred in law. Dr Duncan was entitled to have his case decided by the committee in accordance with the law as expounded in the High Court.

“What indication in the decision is there that they have in fact applied an objective test, not what indication is there that they didn’t,” he said. Dr Harrison said that in holding that the actions and intervention of Dr Duncan were unwise and unwarranted, the committee made a value judgment as to the need for action. But it had deliberately limited its inquiry and contemplation to exclude evidence as to what was the true prognosis and “real risk to passengers in this situation.”

Dealing with the charge of disgraceful conduct, Dr Harrison said the “book had been thrown at Dr Duncan.” This had been because the preliminary proceedings committee of the Medical Council and the Medical Council, or perhaps that the

committee alone, wanted to have everything brought before the council and have the opportunity of the strik-ing-off power exercised by the council.

“This, I submit, is the reality behind the denials,” Dr Harrison said. “And as a consequence I submit that this Court should declare the entire process by which these complaints were looked into and validated null and void.”

The hearing is continuing.