Court Report NZDSOS V MCNZ: Part 1

Introduction

New Zealand Doctors Speaking Out with Science (NZDSOS) were in court September 23 and 24, 2024 to challenge the Medical Council of New Zealand (MCNZ) on two issues.

Firstly, the status of the Medical Council of New Zealand document ‘Guidance Statement – Covid-19 vaccination and your professional responsibility’ (GS) that was issued to all doctors on the medical register on 28 April 2021, just as the Covid injection rollout began in earnest in New Zealand. The status of the document and whether it was, in effect, a standard which was used to discipline doctors, was the question being considered. The MCNZ’s other standards have gone through a transparent process in their development and doctors are expected to abide by them. The status of this ‘guidance’ was ambiguous from the start.

Secondly, whether doctors still had the ability to prescribe off-label medicines using their clinical acumen. We asked the court to uphold and confirm a doctor’s ability to prescribe off-label within his/her scope of practice.

The hearing in front of Churchman J commenced with several unchallenged assumptions in place (as with other C-19 legal actions taken in NZ):

that ‘Covid’ was a public health emergency of unprecedented proportions,
that there were no effective treatments,
that the ‘vaccine’ was the only way to end the pandemic,
that the vaccine was safe and carried minimal or even zero risks,
that the vaccine was effective and prevented transmission.

Interestingly, there were no representatives from the mainstream media present to hear the case, possibly the first of its type in the world – doctors challenging their regulatory authority.

Definitions

During day one, several crucial and pivotal words were used that were not explicitly defined:

anti-vaccination
misinformation
evidence-based

There was a small amount of discussion about the meaning of these terms and the judge agreed it would be helpful to have a more specific definition of anti-vaccination. An affidavit from bioethicist John McMillan for the MCNZ defined anti-vaccination as ‘opposed to vaccination’ and agreed that discussing potential or unknown risks should not be considered ‘anti-vaccination’.

The meaning of misinformation appeared to be anything the government and MCNZ disagreed with, or which might undermine the Covid response and in particular the vaccination programme.

Evidence-based appeared to mean whatever the MCNZ relied on and only on day two did our lawyer emphasise the point that the sanctioned doctors were basing their speech and practice on scientific evidence. It was just that that evidence was not the same as the evidence MCNZ was using (if it was using any), and it seems no one assessed the evidence of the sanctioned doctors.

“The usual detailed discussion of evidence and high-level legal arguments was abandoned,” as was stated in the affidavit of a former MCNZ council member.

NZDSOS Case

NZDSOS were represented by lawyers Lisa Hansen and Peter Kelly. The case asserted that the GS was, in effect, a standard and was used as such while it did not go through the usual process that a standard of such significance would be expected to go through, including consultation with the sector, and an assessment for its compliance with the Bill of Rights Act (BORA) and Health and Disability Commissioner (HDC) Code.

[It is notable that since the GS was issued there was a law change on 28 October, 2021 and now standards issued by MCNZ under the Health Practitioners Competence Assurance Act (HPCAA) have the status of secondary legislation.]

Although not stated in court, there was no need for the guidance statement. The MCNZ’s pre-existing Statement on Informed Consent was perfectly adequate and more than covered everything doctors would be expected to do when discussing C-19 injections with their patients and making decisions for themselves.

Initially, in early March 2021, the MCNZ did not think such a document would be necessary but after reviewing the similar UK and Australian statements – and we suspect, receiving our first open letter of concerns and questions – it decided to work on a statement with the Dental Council (DC). After some discussion the final wording was agreed upon.

During the proceedings our lawyer discussed and dissected each sentence of the GS with lawyers from MCNZ taking a similar approach.

The assumption that the vaccine was effective was implied by calling vaccination ‘crucial’ and ‘critical’. There was also an assumption that it would stop transmission. There are no scientific references to back these claims up, just a reference to the Ministry of Health (MoH) website.

The issue at the heart of the case was that this GS of unclear status was used as a tool to discipline those doctors who ‘stepped out of line’, i.e., who questioned the safety and efficacy of the vaccine, who spoke about treatment and natural immunity, or who spoke about the risks and uncertainties of the vaccine.

NZDSOS had attempted to clarify the nature and status of the GS in October 2021 with a detailed seven page letter to the MCNZ documenting the issues that perturbed us. We received a half page non-reply from MCNZ CEO Joan Simeon in November 2021 suggesting that the GS spoke for itself and stating, “I do not intend to respond to all the matters you have raised in your letter…”

Concerns with the Guidance Statement

There were three main points in the statement that we took issue with.

The expectation that doctors be vaccinated (unless medically contraindicated).
The comment that doctors should discuss the benefits of vaccination while specifically omitting to remind doctors of their obligations to discuss risks, uncertainties and alternatives when providing informed consent.
The somewhat ambiguous statement: ‘…that there is no place for anti-vaccination messages in professional health practice…’ Despite requests from individual doctors, no explanation of what constituted an ‘anti-vaccination message’ has ever been provided.

HDC Code of Rights, BORA and Freedom of Expression

We noted that rights, theoretically protected by BORA and HDC Code of Rights, were being affected but no detailed explanation how this had been justified was presented. According to the MCNZ insider there was “no engagement by the other members of MCNZ with the nature of informed consent, the doctors’ Code of Ethics, or Human Rights more generally”.

An earlier draft of the GS said: “As regulators we respect an individual’s right to have and express their own opinions, but it is our view that there is no place for anti-vaccination messages…”

The words and express were removed in the final version without robust consideration of the BORA Right 14 Freedom of expression. This encompasses both a doctor’s right to share his or her personal and professional opinions but also the public and patients’ right to hear other viewpoints, or ‘second opinions’. It is our view that New Zealanders have been harmed because doctors could not speak freely and alert people and patients to potential risks or alternatives to C-19 injections.

Practicing Medicine (without A Licence)

Our lawyer also noted that the MCNZ was practising medicine without a licence to do so when it expected doctors to be vaccinated (unless medically contraindicated). It is not the role of a regulatory authority to give medical advice or recommend medical treatment, or to limit the contraindications to strictly medical ones excluding religious, personal, philosophical or other. Medical regulators are not providers of health services.

Medical contraindications were extremely restricted and even anaphylaxis or myocarditis following the first dose did not constitute a contraindication to a second dose. This is contrary to all previous medical norms and highly unethical.

MCNZ Case

The Medical Council was represented by Simon Mount, Amberley James and Ms Evans.

They argued that the GS was just ‘guidance’ even though there was no pre-existing document of similar status. As noted, the MCNZ had been unwilling to clarify the status of the document when asked by individual doctors or by NZDSOS collectively in 2021.

They suggested it was similar in nature to the End of Life Choice Act document, which referred doctors to existing standards. However, the GS was clearly of a quite different nature and did not specifically point doctors to any existing standard. The question was later asked – why the need to revoke the GS if it merely reflected existing standards.

The MCNZ lawyer asserted that the GS was not used as a standard and was just guidance. He insisted that the MCNZ did not use the GS to discipline doctors and that no doctors were sanctioned (solely) because of the GS. They would have been sanctioned under existing standards even if the GS was not in place.

However, when considering revoking the GS in September 2023 the consultation document noted: “The GS has since been referred to and relied on in various council functions including disciplinary and competence processes.”

In addition, the language used in disciplinary letters to various doctors, when referring to the GS, reveals its true intent.

guide as to the conduct which is expected of doctors,
adherence to,
compliance with its statements and guidance,
do not align with the Council’s joint statement,
contrary to Council’s joint statement,
Medical Council … guidance on Covid-19 vaccination … not complied with,
did not adhere to the Medical Council of New Zealand guidance statement,
conduct is inconsistent with … council’s guidance statements,
the information … is inconsistent with … council’s … guidance statement COVID-19 vaccine and your professional responsibility,
contains information … not aligned with council’s guidance statement,
reminded of the importance of adhering to … its guidance statement.

The MCNZ lawyer tried to say all this was just ‘loose language’ and did not actually mean that doctors had to obey the GS. We say this language was highly specific and deliberate.

There was discussion about why only ‘benefits’ were specifically mentioned without risks as well. The answer became evident as the submissions proceeded. According to the sworn affidavit from a former MCNZ member:

There was general agreement among most MCNZ members that the Covid vaccine was a zero risk medication, and that doctors who thought the side effect risks were significant were woefully misinformed. The approach from MCNZ staff and most MCNZ members was to rely on the guidance statement, which indicated doctors should promote vaccine benefits not highlight risks. That meant that a doctor talking about the risks associated with vaccination was a reason to take disciplinary action.

It was stated that with regards to BORA, the majority view within MCNZ was that any limits to rights were legal and justified and that there had been robust discussion within council. However, no evidence was provided to demonstrate this.

DCNZ Case

The Dental Council (DC) was represented by Jonathan Coates and Gillian Weir. Their argument included that relying on the GS did not mean that its validity was in question.

The unprecedented nature of the pandemic or public health emergency was reiterated with quotes from Italy ‘when the storm hit us, we were unprepared’, prompting the judge to note it was ‘extraordinary times’.

It was interesting to learn that someone from the Dental Association had asked the Dental Council “who was assessing the science?” underpinning the guidance. It appears that no one was but at least it registered somewhere within dentistry that that might be important.

This was in contrast to the MCNZ which just accepted the word of the MoH. Nowhere in the MCNZ arguments or evidence was it mentioned that an independent assessment of the science allegedly supporting vaccine safety and efficacy had been considered or undertaken.

The DC lawyers stated that the HDC Code of Rights does not have the same status as the BORA – but they both have their own individual enshrining acts – and that it was incorrect for NZDSOS to think the GS could breach the code.

They argued there was a difference between ‘adequately informed’ and ‘fully informed’ and that there was no obligation to consider ‘unknown risks’. Their expert (Dr Helen Petousis-Harris) had stated that in April 2021 there were ‘no known material risks’ so there was no need to mention risks expressly in the GS. Their expert suggested that myocarditis became a material risk in July 2021.

It was noted that the DC did respond to practitioner queries about implications of the GS and did not take disciplinary proceedings against dentists based on, or referring to, the GS.

Summary

NZDSOS took legal action against the MCNZ because the Guidance Statement produced by it and the Dental Council placed doctors in a difficult situation. With no clarity as to its status, and uncertainty about the definitions of several words within it, doctors have had to decide whether to adhere to it, or to pre-existing standards, when discussing vaccination against C-19 with the public and their patients.

Our position is that the GS and the way it has been used, as well as actions taken by MCNZ with respect to ivermectin, have harmed both New Zealanders and the profession of medicine, perhaps irrevocably.

We await the judgement of Churchman J with interest, as we have in the various other cases we have taken on behalf of the health care workers and everyone else in New Zealand.