The former NZ opthalmologist has already lost his profession and his business but authorities were intent on ‘crushing a man,’ his lawyer told the court.
New Zealand’s Ministry of Health wants a former eye doctor “to remember his mistake forever and a day,” his lawyer has told the Napier District Court.
Dr. Phil Macdonald had already lost his medical career and business over his stand on the government’s COVID-19 vaccination mandate, and there was no purpose to be served in convicting him, counsel David Jones KC argued.
During COVID, the Medical Council imposed a vaccine mandate on doctors. Although Macdonald was vaccinated against other diseases, but had doubts about the efficacy and safety of the COVID-19 vaccine, and chose not to take it.
Instead, he signed up with a tikanga (Māori customary law) alternative to the Medical Council—the Wakaminenga Health Council (WHC)—which did not require him to be vaccinated.
The validity of that was dismissed by Judge Richard Earwaker, who said customary law “cannot usurp the provisions of the HPCA [Health Practitioners Competence Assurance Act].”
The WHC did not have the authority to register medical practitioners, and the belief that Macdonald could continue to practise under it was a “mistake at law.”
Authorities were tipped off by a pharmacy, which received prescriptions signed by Macdonald using a registration number prefixed by “WHC.” It later received a letter from the organisation claiming it was the “Health Authority under sovereign native customary title” and that the HPCA Act “has no authority in our jurisdiction.”
Although he had been a doctor for around 30 years, he closed his business, Napier Eye Opthalmology, in 2022 when the Ministry laid 19 charges for continuing to practise after giving up Medical Council registration that year.Jones submitted that Macdonald should receive a discharge without conviction, pointing out “he has lost his profession, he has lost his practice, he has lost his ability to be a doctor.”
The ophthalmologist had sought an “ethical way of practising” without having to be vaccinated during the pandemic.
He was now retraining in a totally different field: information technology with an emphasis on artificial intelligence. A conviction would only make it even harder to compete in his new field against younger candidates after he completes his studies.
“What is the purpose in crushing a man [by convicting him] … what is the point of that?” Jones asked. “They want to punish Dr. Macdonald. They want Dr. Macdonald to remember his mistake forever and a day.”
But the prosecutor acting for the Ministry, Tim Bain, said Macdonald had been “dishonest,” breached the trust of patients by not informing them he was unvaccinated, which had real consequences for the quality of care he was able to provide.
Macdonald had been told “point blank” to stop practising and that the WHC was not a legitimate authority.
“The research caused him to be extremely concerned about the safety of the vaccine and the adequacy of the testing regime. He did not believe the vaccine for coronavirus was a valid and efficacious vaccine,” the judge said.
“He was not willing to take the vaccine himself nor was he willing to advise patients to.”
But for the defence to succeed, the court would need to accept that the WHC was entitled to register health practitioners and it “did not hold and has never held such authority,” he said.
He reserved his decision. If convicted, Macdonald could face fines of up to $30,000 (US$18,300).