• Macdonald is now retraining in information technology with a focus on artificial intelligence.
• He faced 19 charges from the Ministry of Health under the Health Practitioners Competence Assurance Act 2003.
An eye surgeon has been forced into a mid-life career change after losing his profession and his business through taking a stand against a Covid-19 vaccination mandate.
At the age of 55, Dr Phil Macdonald is studying for a new career in what could be considered a young person’s industry – information technology with a specialisation in artificial intelligence (AI).
Macdonald – a doctor for about 30 years – closed his clinic and business, Napier Eye Opthalmology, when the Ministry of Health prosecuted him for continuing to practise after giving up his Medical Council registration in 2022.
He signed up instead with a tikanga or "Māori customary law" alternative.
This unsanctioned organisation, the Wakaminenga Health Council (WHC), did not require him to be vaccinated.
In response, the Ministry of Health laid 19 charges against Macdonald under the Health Practitioners Competence Assurance Act 2003 (HPCA).
Thirteen charges alleged Macdonald claimed to be a health practitioner when he did not hold a current practising certificate. Another alleged that he used a title indicating he was a registered physician after his registration had lapsed.
Five charges alleged that he performed a "restricted activity" - clinical procedures – while not registered.
Macdonald pleaded not guilty and took his case to trial.
Judge Richard Earwaker said in finding Macdonald guilty that the WHC did not hold - and had never held - any authority to register medical practitioners and the belief that the ophthalmologist could continue to practise under it was a "mistake at law".
Judge Earwaker said the WHC sought to use the principles of tikanga to set itself up as an alternative health authority in response to the Covid-19 pandemic.
"However, tikanga cannot usurp the clear provisions of the HPCA Act."
At a hearing in the Napier District Court last week, Macdonald’s counsel, David Jones KC, argued for a discharge without conviction.
He said his client had been looking for an "ethical way of practising" without being vaccinated for Covid during the pandemic.
He was "not an anti-vaxxer in that sense of the term" and was vaccinated against other diseases but had misgivings about the efficacy and safety of the Covid-19 vaccine.
In taking his stand, "he has lost his profession, he has lost his practice, he has lost his ability to be a doctor", Jones said.
He said Macdonald would be "jumping through hoops" to try to re-register as an ophthalmologist and had made a decision to put medicine aside to retrain in IT.
He was in his second year of study and would be 56 or 57 when looking for jobs in his new field.
‘What is the point?’ KC asks
Any difficulties he faced securing jobs would be made worse by having convictions, which might also limit travelling to the United States, where work with AI was particularly strong and important.
"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 for ever and a day."
But counsel Tim Bain, appearing for the Ministry of Health, said Macdonald’s actions were "dishonest", involved breaching the trust of patients and had real consequences for the quality of care he was able to provide.
He did not tell his patients that he was not vaccinated.
Macdonald had been told "point blank" that he could not practise and that the WHC was not a proper authority.
The charges Macdonald faced are regulatory rather than criminal offences. If convicted, he could expect to face fines rather than other sanctions. The HPCA provides for fines of up to $30,000.
Judge Earwaker reserved his decision on Macdonald’s fate.
Pharmacy blew whistle to Medical Council
In his earlier decision, the judge had said that a pharmacy had contacted the Medical Council after it received prescriptions from Macdonald using a registration number prefixed with the initials WHC.
The same pharmacy later received a letter from the WHC saying that it was the "Health Authority under sovereign native customary title".
The letter said the HPCA Act "has no authority in our jurisdiction and is not recognised in Ture Tikanga (Māori customary law)".
"As a WHC registered physician.... [Macdonald] has full prescribing rights. You can lawfully continue to dispense prescriptions," the letter said.
No challenge to qualifications
Judge Earwaker said Macdonald had practised medicine for about 30 years and there was no challenge to his qualifications or experience.
The pandemic changed how he was required to practise and he found it a very stressful and confusing time.
"He said when the vaccines were being developed, he studied it in great detail," the judge said.
"In short, [the doctor] said he found himself in an ethical dilemma. 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.
"He was not willing to take the vaccine himself nor was he willing to advise patients to."
Macdonald registered with the WHC on October 30, 2021, and his registration with the Medical Council ceased on January 25, 2022. His business closed in July 2022.
He told his trial that he had been advised by the WHC that Māori common law and principles of tikanga were accepted as "a separate strand of New Zealand law" that had been ratified by the High Court.
"He maintains that he took all reasonable steps to confirm that the WHC was bona fide and a genuine legal alternative to the Medical Council," Judge Earwaker said.
However, the judge said that for the defence argument to succeed, he would need to accept that the WHC was entitled to register health practitioners under the principle of tikanga as recognised by common law.
"There is no such evidence before me, nor could there be, as the WHC did not hold and has never held such authority," he said.
