Shelton v Medical Council of New Zealand [2022] NZDC 4582

Published 14 April 2022

Appeal — interim suspension of practising certificate — danger to public — COVID-19 pandemic — vaccinations — anti-vax movement — freedom of expression — voluntary undertaking — Health Practitioners Competence Assurance Act 2003, ss 3, 35, 69, 70, 108, 109, 111 & 118 — Health and Disability Commissioner Act 1994, ss 40, 42 & 59 — New Zealand Bill of Rights Act 1990, ss 5 & 14 — 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 — R v Hansen [2007] 3 NZLR 1. The appellant was a medical doctor who was publicly opposed to the covid-19 vaccine and had discouraged some of his patients from getting vaccinated. As a result he came under investigation by the Health and Disability Commissioner (HDC) for posing a risk of harm to public health. After the HDC investigation was launched the respondent initially decided not to suspend the appellant's practising certificate, preferring to instead enter a voluntary undertaking with him to manage any harm that he may pose to public safety. However the respondent eventually decided to suspend the appellant's certificate pending the outcome of the HDC investigation, after being unable to secure his assurance that he would refrain from making public statements that could undermine New Zealand's pandemic response. The appellant appealed the suspension, arguing inter alia that the respondent made the decision to suspend him using an improper process; that the decision to suspend him had been wrong in fact and law; and that the suspension violated his right to free expression. The Court found that the respondent would not have suspended the appellant's practising certificate had he agreed to the voluntary undertaking that the respondent had proposed initially; and also that the parties' disagreements as to the terms of the undertaking had sprung from the appellant's public statements about the vaccine. The appellant's public statements on the vaccine were outside the scope of the HDC investigation, which was empowered only to investigate services to patients. Therefore if the respondent had been concerned about the appellant's public statements, it should have launched an investigation of its own. Without a live investigation, the respondent had had no legal power to suspend the appellant's practising certificate on the strength of his public statements; the respondent had only been empowered to take actions directly relevant to how the respondent interacted with his patients. The appeal was allowed and the interim suspension was overturned. The Court sought submissions from counsel for final orders and directions. Judgment Date: 31 March 2022.