The significance of performance without complaint following a disciplinary hearing

Subramani v A Professional Conduct Committee Appointed by the Dental Council of New Zealand

Dr Subramani admitted a charge of professional misconduct before the Health Practitioners Disciplinary Tribunal. The Tribunal imposed censure; cancellation of registration; a fine and costs. Dr Subramani then appealed the cancellation of his registration and the fine. In doing so he sought leave to adduce further evidence. This application related to evidence of his performance under supervision between the hearing and decision.

The Court noted that in previous decisions, Courts had considered such an appeal was against the exercise of a discretion and therefore limited in its permissible scope, whereas other decisions had considered such appeals to be general appeals requiring the appellate court to come to its own view on the merits, even where an assessment of fact and degree is required. The Court indicated that the latter approach was favoured in more recent authority, noting however that the approach taken in this case would not affect the outcome.

Dr Subramani sought to admit as further evidence the 10 months of supervised work he did between the hearing and the decision. The PCC submitted evidence of Dr Subramani’s successful performance under supervision was already substantially before the Tribunal and so the further evidence added nothing

In determining whether to exercise its discretion, the Court had regard to whether the evidence could have been obtained with reasonable diligence; was cogent and credible; would influence the outcome; and would require further subsequent evidence. The overarching consideration was the importance of doing justice in the particular case.

The Court held that the evidence was fresh as it was not available at the hearing. It was cogent and credible. However, significantly, it held that the evidence would not make a material difference to the outcome as the Tribunal had evidence of successful supervision prior to the hearing.

It also noted that the fact complaints had been made during this period, though unresolved, still brought the value of the otherwise satisfactory supervision reports into question.

Finally, the Court considered the further evidence would not materially assist in determining whether cancellation was appropriate, as it did not assist determining whether Dr Subramani was able to practice competently when he was not under close supervision. The application to adduce further evidence was declined.

On one level this decision involves a relatively straightforward application of the rules for the admission of further evidence on appeal. However, for the professional standards or disciplinary committees faced with such appeals and applications to admit further evidence, the case is valuable. The fact that an applicant may have performed without incident following the hearing of complaints against them might well be fresh and cogent, but the factors identified by the High Court are exactly those that call into question the value of such evidence, which should not be unduly elevated in significance.  

Article written by Ben Wilkins and Ben Finn

To find out more about our Professional Disciplinary practice please contact; Stephanie Bishop, Sally Carter, Tim Bain or Richard May