A loophole in health legislation has left the Medical Council powerless to immediately suspend a doctor, even if the doctor is under investigation for sexual misconduct or convicted in court.
The council has filed three formal submissions to the Ministry of Health calling for a law change over the past eight years, but says the requests have gone unanswered.
"We believe it would enhance patient safety if we had the ability to immediately suspend in very worrying situations," said council chairman Andrew Connolly.
A Herald on Sunday investigation found Kiwi health professionals disciplined for dodgy conduct such as child porn addictions, grooming fragile teens or unwanted sexual touching have continued to practise in NZ without patients' knowledge.
Those under investigation in sex cases typically get name suppression and can continue practising while facing the disciplinary process. The council cannot suspend a physician without first writing to the doctor to "propose" suspension.
The doctor can challenge that proposal, forcing the council to reconsider - a process that can take months and end up in court - while the doctor keeps working. "We would like to see a change in the Health Practitioners Competence Assurance Act to give council some more immediate powers," Connolly said.
Last year, Hawke's Bay GP Dr David Lim successfully appealed a suspension bid by the council after allegations surfaced that he had indecently assaulted four male patients while they were sedated for minor surgery. Even when Lim was criminally charged with stupefying and assaulting patients, he was able to keep practising. He has denied all charges, and is likely to stand trial next year.
In February, the council reapplied to suspend his practising certificate and Lim fought this all the way to the High Court. It rejected his application and his certificate was suspended in April.
International patient rights expert and former Health and Disability Commissioner Professor Ron Paterson said the council must be granted the right to "act promptly and suspend doctors" as it sees fit.
"The failure to address this gap in the legislation, which puts patients at risk, is of concern," said Paterson, who was last week selected by the Medical Board of Australia to lead a review on health professionals being supervised while under investigation for misconduct.
"This gap needs to be filled."
Council chief executive Philip Pigou said the multiple calls for legislative change in this area had been ignored at government level.
"We believe the ability to suspend a doctor immediately to protect the public outweighs the issues around natural justice," he said.
But QC Harry Waalkens, who has defended several doctors facing sexual misconduct charges, said he "completely disagrees" and argued natural justice must prevail.
The ministry started a policy review of the act in 2012 and that review is still ongoing, its website shows.
Labour Party deputy leader and health spokeswoman Annette King said the ministry was "long overdue in acting". "They've turned down [the council] three times when the profession themselves are asking for this tool," King said. "To actually ignore them is negligent."