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Canaday v Medical Council of New Zealand [2022] NZDC 4436

Published 14 April 2022

Appeal against suspension — suspension of medical practising certificate — Covid-19 pandemic — vaccination — anti-vax movement — freedom of expression — Voluntary Undertaking — “professional capacity” — “practising medicine” — Health Practitioners Competence Assurance Act 2003, ss 3, 35, 36, 68, 69, 80, 100, 108, 109, 111 & 118 — Health and Disability Commissioner Act 1994 — New Zealand Bill of Rights Act 1990, s 14 — District Court Rules 2014, rr 18.16 & 18.17 — Lim v Medical Council [2016] NZHC 485 — Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 — Vohora v The Professional Conduct Committee [2012] 2 NZLR 668 — Moncrief-Spittle v Regional Facilities Auckland Limited [2021] NZCA 142 — R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60 — Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 — IRG v A Professional Conduct Committee of the Psychologists’ Board [2009] NZCA 274; 2009 NZAR 563 — Orlov v New Zealand Law Society [2013] NZCA 230 — D v New Zealand Police [2021] NZSC 2 — R v Hansen [2007] 3 NZLR 1. The appellant was a retired medical practitioner who publicly opposed the covid-19 vaccination programme and other public health measures that New Zealand had taken in response to the pandemic. As a result members of the public had made complaints about him, and the respondent had referred his conduct to a Professional Conduct Committee (PCC) for investigation. The respondent then decided to suspend him from practice, pending the outcome of the PCC investigation. Although retired, the appellant was still seeking locum or part-time medical work. Therefore he appealed the suspension, arguing that what he had done posed no threat to public health and that the suspension violated his right to freedom of expression. The appellant argued that his activities, which included joining presentations by the anti-vaccine group Voices for Freedom and criticising the vaccine in media interviews, did not constitute "practise" of medicine and that he was entitled to give his opinion. The Court found that at the relevant times the appellant had been acting in a professional capacity; he had described himself as a doctor in his public statements and had used his medical credentials to boost his credibility. And although his comments were not made in the context of a doctor-patient relationship, they had the potential to cause major harm; they could have influenced large numbers of people to not get vaccinated, with ripple effects on the public health of the country as a whole. However the respondent's decision to suspend the appellant's practising certificate had not been an effective means of managing any potential danger to the public. The appellant had continued to publicly oppose the vaccine after he was suspended. The respondent could instead have entered a voluntary undertaking with the appellant, that limited his ability to make public statements. This would have been both more fair to the appellant and also probably a more effective means of limiting any danger to the public. The Court found that the interim suspension was not a fair, reasonable and proportionate response to the appellant's activities. The Court requested submissions from counsel within 14 days of the judgment as to appropriate orders and directions. Judgment Date: 31 March 2022.