New Zealand Appeal Court Upholds
Disciplinary Action against Jacques Imbeau

Stephen Barrett, M.D.


In 1999, the New Zealand Court of Appeal upheld a lower court ruling supporting a disciplinary decision by the Dental Council of New Zealand which concluded that Jacques Imbeau, D.M.D. had breached the Dental Act 1988 by with an "act or omission that was or could have been detrimental to the welfare of a patient." The disciplinary case centered on the question of whether trauma to a patient's facial nerve and subsequent pain were due a tooth extraction or caused by neuralgia-induced cavitational osteopathosis (NICO). The Dental Council's Disciplinary Tribunal concluded that the tooth extraction was responsible. Imbeau practiced in Canada before registering in 1994 for practice in New Zealand. Imbeau operates the Centre for Integrative Dental Medicine in Auckland and describes his practice as "biological dentistry."


IN THE COURT OF APPEAL OF NEW ZEALAND ca102/99

between Jacques Imbeau
Appellant

and THE DENTAL COUNCIL OF NEW ZEALAND
First Respondent

AND

MARION PHILLIPS
Second Respondent

Hearing: 24 May 1999
Coram:

Henry J
Thomas J
Tipping J

Appearances: J A L Gibson QC and G Praat for the Appellant
R M Adams and P J Clarke for First and Second Respondents
Judgment: 27 May 1999

Judgment of the court delivered by Henry J

[1] The applicant was found guilty under s54(1)(b) of the Dental Act 1988 of an act or omission in the course of or associated with his practice of dentistry that was or could have been detrimental to the welfare of a patient. His appeal to the High Court was dismissed by Potter J in a judgment delivered on 4 February 1999. His application for leave to appeal to this Court was dismissed by the Judge on 7 April 1999. He now seeks such leave from this Court pursuant to s64(17) of the Act.

[2] It is common ground that the principles to be applied to the leave application are those which apply in respect of applications made under s67 of the Judicature Act 1908. In support Mr Gibson contended that there was a question of law capable of bona fide and serious argument of sufficient importance to outweigh the cost and delay of a further appeal. The question of law is directly related to expert evidence adduced before the Disciplinary Tribunal as to the dental treatment of the patient in question by the applicant. In essence Mr Gibson submitted that the Judge erred in failing to apply the principles of Maynard v West Midland Regional Health Authority [1985] 1 All ER 635. A supplementary question as to the burden of proof was also raised.

[3] The principle in question relied upon by Mr Gibson can be taken from the headnote in that case:

Where a plaintiff's claim was based on an allegation that the fully considered decision of two consultants in the field of their special skill was negligent, it was not sufficient for the plaintiff to show that there was a body of competent opinion which considered that that decision was wrong if there also existed a body of professional opinion, equally competent, which supported the decision as being reasonable in the circumstances.

[4] The issue in that case was whether a doctor had breached the required standard of care in deciding to carry out a particular operation before obtaining the result of a certain test. The principle is well established and has earlier been applied in such well known cases as Hunter v Hanley [1955] SLT 213 and Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.

[5] The relevant findings of the Tribunal can be stated quite briefly. The patient suffered trauma to a nerve which led to post traumatic neuralgia. This occurred during a procedure carried out by the applicant following extraction of the tooth. At the hearing the primary issue was whether the patient's neuralgia was caused by the procedure or whether it was due to a pathological condition known as NICO. The defence adduced expert evidence to support the contention that the cause was the pathological condition. The defence expert evidence also contended that the procedure carried out by the applicant as described by him was appropriate. The Judge held that the principles in Maynard had no application. The important factor leading her to that conclusion was the Tribunal's conclusion that NICO was not relevant to this particular case, in that the clinical procedure was responsible for trauma to the nerve thus causing the ultimate problem. We agree with this analysis. Whether or not the patient's neuralgia was caused by the procedure and resulting trauma to the nerve was a matter upon which the Tribunal was entitled, indeed bound, to reach a conclusion. It was a question of causation which did not involve an issue as to whether the applicant had acted unprofessionally. Once the Tribunal had concluded that the NICO theory did not account for the resulting neuralgia, then it was open to it to find that s54(1)(b) had been breached. It is clear that the defence's expert evidence was led to explain the resulting neuralgia as being consistent with correct procedures having been carried out by the applicant. But once that consistency was rejected the basis for exonerating the applicant disappeared.

[6] Mr Gibson also criticised the Judge's distinction between negligence and a disciplinary charge under s54(1)(b) as negating the relevance of the Maynard principle. Professional negligence is separately identified in s54(1), and included as a distinct disciplinary issue by paragraph (c) of that subsection.It is unnecessary for us to embark on a consideration of that distinction, or of the elements of a charge under para (b). It is sufficient for present purposes to observe that whether or not an act or omission has been detrimental to the welfare of a patient will generally require an assessment of expert evidence. Treatment which is appropriate, even if resulting in some pain and suffering, would not appear to be detrimental to welfare within the meaning of para (b). An element of unprofessional conduct would appear to be necessary to found that charge. However, for the reasons given above this is not a present issue and does not give rise to any question of law requiring consideration by this Court.

[7] There is nothing in either the Judge's or the Tribunal's approach to the burden of proof on a charge under s54(1) which justifies a further appeal to this Court. No error of law is discernible.

[8] The application for leave to appeal is accordingly dismissed. The respondents are entitled to costs which are fixed in the sum of $2,500 together with disbursements including reasonable travelling and accommodation expenses of one counsel as approved by the Registrar.

Solicitors

Rainey Collins Wright & Co, Wellington, for Appellant

Adams & Horsley, Tauranga, for Respondents

This page was posted on November 8, 2006.

Links to Recommended Companies