Medical Freedom on Trial: NZDSOS Court Case Verdict

New Zealand Doctors Speaking Out with Science (NZDSOS) legal action against the Medical Council of New Zealand (MCNZ) and Dental Council (DC) was unsuccessful, with the court ruling in favour of the councils. The ruling represents a troubling trend of medical regulatory bodies becoming enforcement agencies for government policy.

Read – Medical Freedom on Trial: NZDSOS Court Case Verdict

Introduction

The judgement in our legal action NZDSOS v MCNZ (Medical Council of New Zealand) and DC (Dental Council) was released on 25 Nov 2024.  Unfortunately the courts have found in favour of the MCNZ and DC.

We were aware that in the current governmental and judicial climate the chances of a win were slim, in part because of the significant implications if we did win.  However, we remain optimistic that the truth will prevail and the Guidance Statement (GS) will eventually be seen for what it was – a giant stick with which to threaten and discipline doctors who dared to question or criticise, or attempt to stand between their patients and government-imposed draconian and plainly harmful measures.  In addition, we hope ivermectin will be restored to its rightful place as a longstanding, safe, useful medicine able to be prescribed by doctors who have undertaken an informed consent process with their patients.

In the judgement, we were mischaracterised from the start by being labelled as” health practitioners who are opposed to vaccination” when what we have been advocating for is fully informed consent – for New Zealanders to be told the truth (about risks and benefits of both c-19 infection and c-19 injections), as well as other options they may have, and then be free to make their own decisions.

This labelling and lack of nuance suggests that the judge was biased against us.

Foundations Unchallenged

A fundamental failing of the judicial system with all the covid cases is that there is no dissection of the foundations of the covid narrative. 

It is taken for granted by the courts –

• that the world has just experienced a pandemic of unprecedented proportions (a ‘global health emergency’) without assessing the data that would show this assumption to be incorrect,  
• that there were no effective treatments,
• that the vaccine was effective in preventing illness and transmission of that illness,
• that the vaccine was ‘zero’ or minimal risk,
• that there was no evidence for the effectiveness of ivermectin or other treatments.

The judge did not question or do his own assessment of these foundations to confirm their validity.

Lack of Definitions

In addition, there is no clarification of definitions of key words that are used in proceedings.  In our cases these include:

• anti-vaccination messaging
• misinformation
• anti-vaccination misinformation
• vaccine misinformation
• evidence-based
• guidance (how does it differ from a standard, is it legally binding or merely a recommendation?)
• vaccine hesitancy
• personal views v professional medical views

One might think a profession as pernickety as the law would be sure to be clear on definitions of words before proceeding.

‘Misinformation’ is a particularly troublesome term.  What does it actually mean and who is the arbiter?

Former MCNZ Member’s Evidence

There was some deliberation as to the admissibility of Mr Aston’s evidence.  He was a lay member of the MCNZ from October 2019 to May 2022. This included the short period in March and April 2021 when the Guidance Statement was formulated and discussed, and later in 2021 and early 2022 when doctors were being referred for ‘misinformation’ claims and for prescribing ivermectin.  He was privy to the level of discussion that took place to assess the scientific foundations of the GS, the potential Bill of Rights breaches that would ensue, the Human Rights and ethical issues raised by doctors, and the evidence provided by doctors to back up the statements that were being labelled as ‘misinformation’.

The judge decided: “To the extent that Mr Aston’s evidence has any relevance it is in respect of the questions around whether the Council turned its mind to ss 11 and 14 of NZBORA. I admit that part of his affidavit.” 

His evidence was very revealing about the attitude of the MCNZ members to the use of the GS (emphasis added).

“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.” 

“What alarmed me at the time was the majority of MCNZ members were aggressive in their response to all these “anti-vax” doctors, calling for harsh, vindictive even, sanctions for even the most minor of cases.” 

The Hansen Test for Bill of Rights (BoR) Assessment

Our arguments included that the GS restricted a doctor’s right to decline medical treatment as well as doctors’ and patients’ rights to freedom of expression (to impart and receive information).  If these rights are to be overridden, in theory there will be a demonstrable justification for doing so i.e. a documented logical weighing up of all possibilities.

In theory the action (preventing covid infections) is so important that restrictions (on the right to decline medical treatment by requiring vaccination) must be imposed, because there is no other way of achieving the desired outcome.  When asked to determine whether overriding the BOR is appropriate, the courts use the HansenTest which requires them to determine:

a) whether the limiting measure serves a purpose sufficiently important to justify the limitation of the right; and

b) whether the means chosen to achieve that objective are proportionate, in that the limiting measure is rationally connected with its purpose, impairs the right no more than reasonably necessary or sufficient to achieve that purpose, and is in due proportion to the importance of the objective.

It appears to us that the Hansen Test for assessing whether it is justified to override fundamental human rights is completely inadequate and unfit for purpose, especially where irreversible medical treatments are involved.  In this case there was insufficient examination of potential risks and no consideration of other ways of achieving the desired outcome.

The whole BORA analysis process becomes even less satisfactory when the courts do not uphold the demonstrable part of the deal, when there is no documentation of how various factors were weighed up.

Right to Decline Medical Treatment

Doctors, along with the public, supposedly have the Right to Decline Medical Treatment as per the Bill of Rights s11.  The GS sought to curtail this by expecting doctors to be vaccinated.  

When applying the Hansen Test in regard to the Right to Decline Medical Treatment, the judge does not appear to have turned his mind to the very low mortality of the illness in working health professionals, the longstanding notion of natural immunity or the fact that there was effective treatment for c-19 for those few people who needed anything more than supportive care for their few days of unwellness.

It is reported that the members of MCNZ, including Dr Curtis Walker, believed that the covid vaccine was zero-risk.  This statement is patently false, as not only has there never been a medication or medical intervention that is zero-risk but reports were starting to come out at that time of significant adverse events to the covid vaccine.

It follows that if the MCNZ saw the covid vaccine as zero-risk that their Bill of Rights assessment could conclude that vaccination was justified.  

However, we note there has been no demonstrable justification i.e. a document that can be read and discussed showing how the MCNZ weighed up the risks and benefits of both covid infection and covid vaccination for health practitioners to come to their conclusion. No evidence was presented that proved any such discussion of the Bill of Rights issues took place.  We just have the word of Dr Curtis Walker that risks and benefits of both infection and injection were assessed. 

“Dr Curtis Walker, the then Chair of the Medical Council, deposed that the majority view was the statement appropriately balanced any limits on doctor’s rights with the risks to public health posed by the pandemic.”

In contrast Mr Aston, former MCNZ member stated: “With the exception of my contributions (with occasional support from one or two others), 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.”  

He also noted: “The usual detailed discussion of evidence and high-level legal arguments was abandoned.”

One member ‘hadn’t bothered to read‘ a doctor’s submissions which were focused heavily on the Human Rights aspects.

In the absence of solid evidence, the judge has preferred to believe Dr Curtis Walker.  We know who we believe.

Freedom of Expression

Section 14 of BORA relates to freedom of expression.

During development of the GS, the words ‘and express‘ were removed from the phrase “as regulators we respect an individual’s right to have and express their own opinions”.  The MCNZ lawyers argued that this was justified and the judge has agreed with them.

However, the judge does not appear to have considered that the supposed ‘misinformation’ being protected against might actually be the truth, or that the purported ‘anti-vaccination messaging’ might be alerting patients and the public to the very real risk of serious adverse events that could follow vaccination. 

As shown by the evidence of Richard Aston above, any discussion of the risks of c-19 vaccination was considered by the MCNZ as ‘anti-vaccination messaging’ and therefore a reason to take disciplinary action.​​​​​​​

The judge has done no assessment of the quality or accuracy of the evidence either we or the MCNZ were referring to.  He found that “The Statement did not prohibit practitioners from expressing any views on any risks of the COVID-19 vaccine.”​​​​​​​​​​​​​​​​​​​​​  In reality, we know that the GS was used as a basis to discipline doctors who questioned or spoke of risks.

In addition to restricting the ability of doctors to impart information, the GS also limited the ability of the public and patients to receive information about potential risks and alternatives to vaccination.

Ivermectin

Although the purpose of doctors is to practice medicine, provide medical advice and help patients weigh up the risks and benefits of their proposed individual treatment, it seems when it comes to treatment of c-19 the government needed to step in and tell doctors what they could and couldn’t discuss or prescribe.

We asked the court to uphold the right of doctors to be doctors and to use their clinical judgement in conjunction with individual patients.  However Churchman J determined that it was right and proper for Medsafe and the RNZCGP to issue directives about ivermectin and for the MCNZ to hold these up as standards to be adhered to, rather than advice to be considered, as is usual practice.  He determined the MCNZ was right to step in and discipline doctors for using this long-established, safe medication.  This was odd because the government had the ability to ban particular medicines they thought were dangerous or unsuitable using s48 of the Medicines Act and they chose not to.

Churchman J noted ivermectin “lacks strong evidential support in being an effective treatment” but has not commented on how he – as a lawyer, not a scientist or doctor – assessed the quality or content of the evidence provided by each side.

The evidence provided by NZDSOS included a study by Dr Tess Lawrie whose business is evidence-based medicine.  She had worked for the World Health Organisation (WHO) providing reports synthesising the medical literature for years.  Her review of the literature in January 2021 demonstrated that the evidence in favour of ivermectin being an effective treatment was substantial – so much so that she felt compelled to contact then UK PM Boris Johnson with her findings.  

Churchman J decided: “Having examined their competing evidence, I consider that there is greater support for the notion Ivermectin was not a viable treatment for COVID-19.“

Dr William Bay – Australia

Despite our disappointment, we are encouraged by Dr William Bay’s recent win in the Supreme Court of Australia.  In his case the judge stated with regards to the Medical Board of Australia​​​​​​​ (the Australian equivalent of the MCNZ): “None [of the measures] extended the Board’s regulatory role to include protection of government and regulatory agencies from political criticism.”

“It might be difficult to characterise the conduct of the Board and AHPRA as anything less than profoundly unsatisfactory.“​​​​​​​​​​​​​​

In the words of Kara Thomas from AMPS (Australian Medical Professionals Society): “​​​​​​​The Queensland Supreme Court’s ruling in the Dr William Bay case exposed AHPRA and the Medical Board’s methods as fundamentally unlawful, finding they denied basic procedural fairness, demonstrated apprehended bias, and failed to identify actual breaches of professional standards. Instead of protecting the public, AHPRA has become a tool for enforcing political compliance through regulatory terror.“

We’d say the same about the way the MCNZ has behaved and continues to behave.

Conclusion

During the covid years and possibly earlier as well, the MCNZ has morphed – under the influence of IAMRA and FSMB – from a professional regulatory authority into an enforcement agency for government and supranational medical  policy.  And now we have the judiciary endorsing this arrangement.  Unfortunately the people of New Zealand have not been told (officially) that their doctors are now automatons doing the bidding of higher powers and do not have their best interests at heart.

In the current situation, science and evidence can’t be discussed, integrity and medical ethics have given way to compliance, bureaucrats are making clinical decisions, and the judiciary is functioning to protect the government and its authorities, not New Zealand citizens.

For our efforts to uphold ethical patient-focused medicine, we have had costs awarded against us – MCNZ $60K and DC $40K.

We plan to lodge an appeal.