In exercising their discretion to order partial, full, or no costs against practitioners, both the HPDT and LCDT consider a number of factors. These can include the burden on the members of both professions who fund disciplinary proceedings, as well as features specific to individual practitioners such as their financial circumstances or any efforts made to reduce costs.
202 Section 101(1)(f) of the HPCAA provides that the HPDT may order a practitioner found
guilty of any s 100 offence to pay all, or part of the costs of the HDC, DP, PCC or HPDT. Sections 241(a) and 156(1)(n) of the LCA provide that the LCDT may order a practitioner to pay all, or part of the costs of the relevant SC or LCRO (including the prosecuting bodies costs for reimbursing the NZLS for the cost of the LCDT hearing itself (s 251(1) of the LCA)).
203 See Cooray v Preliminary Proceedings Committee HC Wellington AP 23/94, 14 September
1995, affirmed in Vatsyayann v Professional Conduct Committee of the Medical Council of New Zealand, above n 41, at [34].
204 See the High Court decision of Daniels v Complaints Committee 2 of the Wellington District Law Society (above n 144) where the principle in Cooray v Preliminary Proceedings Committee (above n 203) was explicitly stated to have no bearing on the professional
4.2.1 The Overarching Consideration: Reducing the Financial Burden on the Wider Medical and Legal Professions
At first instance, the costs of disciplinary proceedings before the HPDT and LCDT fall upon the members of the two professions by virtue of levies paid to the Medical Council or NZLS, who largely fund the tribunals and the relevant prosecuting bodies. The need to reduce this burden wherever appropriate is commonly cited as the major impetus for choosing to order at least partial costs against a practitioner.205
A futile consideration?
It is possible to argue that the HPDT’s efforts to reduce the burden upon the wider medical profession are fruitless when considering that either way the wider profession covers the costs of proceedings in a large proportion of cases. This is because the majority of all medical practitioners in New Zealand belong to the Medical Protection Society (“MPS”).206 The MPS provides for an equivalent to professional indemnity insurance for all members, including cover for costs orders made against practitioners in the HPDT. Accordingly, when the HPDT makes a costs order against a practitioner, in the majority of cases it is simply shifting the burden from members’ Medical Council levies onto members’ MPS premiums. Whilst a practitioner’s financial circumstances are relevant to determining appropriate costs orders,207 the insurance arrangements of practitioners and the wider profession are considered to be immaterial.208 The HPDT appears to uphold the principle that individual practitioners found wanting should be required to contribute to the costs of discipline, regardless of who may actually pay the bill. Whilst in theory the principle seems noble, there is no escaping the fact that in reality it is fundamentally flawed as a result of the insurance arrangements of the profession.
205 Vatsyayann v Professional Conduct Committee of the Medical Council of New Zealand,
above n 41, at [34], (HPDT); and Auckland Standards Committee 3 v Johnston, above n 42, at [80], (LCDT).
206 See Lucy Ratclifee “New medical indemnity provider enters market” NZDoctor (online ed,
New Zealand, 24 January 2011).
207 Vatsyayann v Professional Conduct Committee of the Medical Council of New Zealand, above n 41, at [34].
208 There was no evidence of the HPDT accounting for a medical practitioner’s MPS/insurance
arrangements when considering costs in any of the cases analysed. Furthermore, information provided by an anonymous but knowledgeable source confirms that the HPDT consider insurance arrangements to be irrelevant when determining costs.
In contrast, the indemnity market for the legal profession is understood to be more diffuse and is not dominated by one provider as in the medical profession.209 As a result, the LCDT’s commitment to reducing the financial burden on the wider profession through costs orders seems less artificial.
Whilst the underlying insurance frameworks of the medical and legal professions do provide an interesting comparison, it is acknowledged that the HPDT is in a difficult position and there is little they can do to work around insurance issues, short of abandoning costs orders altogether. Furthermore, the recent emergence of a newcomer to the medical indemnity market suggests that over time the HPDT’s principled approach may become more realistic.210
4.2.2 Admissions and Co-operation
Both tribunals regard any admissions made by a practitioner, or other co-operative conduct, as being pertinent to cost determinations due to the direct influence such conduct has in reducing the time and expenditure of all involved.211 Medical practitioners may be at a disadvantage in this respect, given that guilty pleas before the HPDT presumably produce smaller resource savings as a result of the HPDT’s self- imposed requirement to independently consider admitted charges.212 However analysis revealed that in cases where charges were admitted, the HPDT commonly reduced costs orders on the basis that guilty pleas aid in the progression of proceedings, notwithstanding its independent consideration of the charges.213 This suggests that medical practitioners are duly rewarded for their co-operation in the disciplinary process and are not disadvantaged as a result of the HPDT’s approach to determining admitted charges.