Beer v Professional Conduct Committee - [2020] NZHC 2828

ORDER: (1) PROHIBITING PUBLICATION OF THE APPELLANT’S NAME FOR 20 WORKING DAYS PENDING APPEAL AND, IF APPEALED,

SUPPRESSION TO CONTINUE ON AN INTERIM BASIS UNTIL DETERMINATION OF THE APPEAL – IN ACCORDANCE WITH PARA [64](a); AND (2) PERMANENTLY SUPPRESSING PUBLICATION OF THE

HEALTH DIFFICULTIES OF THE APPELLANT’S DAUGHTER AND FATHER – IN ACCORDANCE WITH PARA [64](b).

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000266

[2020] NZHC 2828

IN THE MATTER OF an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003

BETWEEN

NIGEL LOWRY BEER

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing: 17 September 2020

Counsel:

A H Waalkens QC and S A Beattie for Appellant J P Coates and B J Johns for Respondent

Judgment:

30 October 2020

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 30 October 2020 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

BEER v A PROFESSIONAL CONDUCT COMMITTEE [2020] NZHC 2828 [30 October 2020]

[1] The appellant appeals against the decision of the Health Practitioners Disciplinary Tribunal (Tribunal):1

(a)declining his application for name suppression;

(b)ordering him to pay costs totalling $71,134; and

(c)ordering confidentiality as to the basis of the respondent’s costs, including hours spent and hourly rates.

The Tribunal’s decision

[2]The appellant is a registered dentist who formerly practised in Auckland.

[3] In June 2019, the Tribunal found him guilty of three incidents of malpractice and conduct likely to bring discredit to the dental profession, which amounted to professional misconduct. The particulars of the charges established are summarised in the Tribunal’s penalty decision as follows:

(a)Particular 1 - On 17 August 2016, [B] extracted an upper molar and placed five fillings for [T], in circumstances where he had failed to obtain her agreement to the treatment plan before she was sedated and disregarded her known financial constraints and advised her after her sedation that the treatment price had increased.

(b)Particular 2 – [B] failed to cooperate adequately with the investigatory processes of the Health and Disability Commissioner (HDC) and the Dental Council (Council) after a complaint had been laid against him by [R], and failed to provide honest responses to both the HDC and the Council in relation to his delay in responding to the complaint.

(c)Particular 3 – On or about 17 August 2016, [B] delivered an intimidating and unprofessional letter and a tax invoice for additional services of $5,290 to [L]’s home address, following her complaint about his services, which were unprofessional and in breach of [L]’s rights as a patient and health consumer.

1 Professional Conduct Committee v [B] Health Practitioners Disciplinary Tribunal 1025/Den18/428P, 5 February 2020 (Penalty Decision).

[4] Particulars 1 and 3 were established both separately and cumulatively as sufficiently serious to warrant a finding of professional misconduct. Particular 2 was established as professional misconduct on a cumulative basis only.

[5] On 5 February 2020 the Tribunal issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2828
Decision Date: 30 October 2020

CaseChat Overview and Summary

Nigel Lowry Beer appeals against the decision of the Health Practitioners Disciplinary Tribunal declining his application for name suppression, ordering him to pay costs of $71,134, and ordering confidentiality as to the basis of the respondent's costs. The Tribunal found the appellant guilty of three incidents of professional misconduct. It declined his application for name suppression under section 95 of the Health Practitioners Competence Assurance Act 2003. It ordered him to pay 50 per cent of the reasonable costs of the Professional Conduct Committee and the Tribunal, which totalled $71,134. It also made an order that the hours spent and hourly rates disclosed by the Professional Conduct Committee could not be used by the parties for any other purpose other than the proceeding. The Court dismisses the appeal. It orders that the appellant's name be suppressed for the 20 working days in which he has to appeal this decision. If he appeals, it orders that suppression continue on an interim basis until determination of the appeal. It orders that details of the health difficulties of the appellant's daughter and father be permanently suppressed.

Orders