C v Director of Human Rights Proceedings HC Auckland CIV 2010-404-1662

[2010] NZHC 1617

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-001662

BETWEEN  C Appellant

ANDTHE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS

Respondent

Hearing:         11 August 2010

Court:            Venning J (Presiding)

Lay Member Mr G Cook JP Lay Member Mr R Musuku

Appearances: A H Waalkens QC for Appellant

R Stevens for Respondent

Judgment:      6 September 2010 at 3.00 p.m.

JUDGMENT OF THE COURT

This judgment was delivered by me on 6 September 2010 at 3.00 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Fisher Lamberg, Auckland

Copy to:            A H Waalkens QC, Auckland

R Stevens, Auckland

Director of Human Rights Proceedings, Auckland

C V THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS HC AK CIV-2010-404-001662  6 September

2010

Introduction

[1]      The Director brought proceedings against C, a medical practitioner, alleging breach of the Privacy Act 1993 (the Act).  In decisions delivered on 18 February and

4 May this year the Human Rights Review Tribunal made the following orders:

a)       a declaration under s 85(1)(a) of the Act that C’s refusal to give the complainant access to personal information was an interference with her privacy;

b)        an award of damages in the sum of $7,500 pursuant to ss 85(1)(c) and

88 of the Act;

c)       declining name suppression for C or his medical practice (an interim order was made to allow this appeal to be pursued);

d)       costs.

[2]      C appealed against the decisions of the Tribunal to this Court.   In written submissions, and at the outset of the appeal, Mr Waalkens confirmed however, that C no longer seeks to quash the declaration.   C now accepts the finding that his actions interfered with the privacy of the complainant.   The focus of the appeal before us was the award of damages for $7,500 and the refusal to make permanent orders suppressing publication of the appellant’s name and/or details that might identify him or his medical practice.

[3]      The parties agreed that the costs in the Tribunal would follow the outcome of this appeal.

Preliminary matter

[4]      At the outset of the hearing Mr Stevens drew the Court’s attention to the fact that one of the lay members, Mr Cook, was known to the now husband of the complainant.  Mr Stevens had alerted Mr Waalkens to the fact.  Neither Mr Stevens nor Mr Waalkens’ clients had any issue with that but Mr Stevens felt he should draw it to the Court’s attention.  Mr Cook confirmed he knew the man now identified as the complainant’s husband but his association with him was limited and he was not aware the complainant was married to him.  Mr Cook has never met the complainant. In the circumstances Mr Cook felt there was no reason why he should not continue sitting.  Counsel accepted that.

Background

[5]      C, together with another doctor, owns and practises in an established general medical practice.   By 2004 the complainant, her then husband and their children were all patients of C.  They regarded him as the family doctor.

[6]      In April 2004 the complainant and her husband separated.   The separation was difficult and acrimonious at times.  C was aware of the separation as both the complainant and her husband independently disclosed it to him.  C was also aware that the parties were engaged in Family Court proceedings relating to custody and care arrangements for the children.

[7]      On 2 August 2004 the complainant’s husband saw C.  The husband told C he was concerned about the complainant’s mental health.   In the course of the consultation he handed C a bundle of documents and asked him to read them.  He explained that the documents supported his concerns that the complainant was suffering from a psychiatric illness.  The husband asked C to give him an assurance he would keep the documents confidential, in a safe and secure place and not release them to the complainant nor to any other third person without his prior approval.  At the  time  C  considered  it  appropriate  to  receive  the  documents  and  to  give  the

husband the assurance in order to retain the husband’s ongoing confidence  and rapport with him as part of the doctor/patient relationship.

[8]      C says he skimmed through the documents.   It was apparent to him that a number of them were documents the complainant would have seen.  It was also clear they contained sensitive information so he kept them in his personal filing cabinet which was locked at all times.

[9]      C did not disclose the existence of the documents to the complainant.  When she next visited him on 11 August 2004 he was prompted to make a note that she was having a major wrangle re protection, access, custody and property and also noted:  “See documents ++++ filed with lawyers read these”.  (The ++++ indicated there were a number of documents.)

[10]     On 13 August 2004 the husband sent a short handwritten note to C enclosing three more documents.   C accepted the further documents on the same basis of confidentiality.

[11]     The complainant saw C as her doctor on three further occasions without event.   Then, on 28 October 2004, she went to the medical practice to get some information from her file to complete an insurance form.  The receptionist brought the complainant’s file up on the computer screen to enable her to review it and note the information she needed.   While doing so the complainant saw the note C had made on 11 August 2004.  C came to the reception area, asked what the complainant was doing there and took her to his office.  In the course of the difficult discussion that followed the complainant asked C directly if her husband had given him documents.   C said he had.   C also confirmed the documents were about her. However,  when  the  complainant  asked  to  see  the  documents  C  said  they were confidential and privileged.

[12]     The complainant left the surgery feeling aggrieved, humiliated and angry.  In evidence she said she felt betrayed.

[13]     The complainant took the matter up with her lawyer.  He wrote a letter which the complainant took with her when she returned to see C on 3 November 2004.  She asked  C  to  reconsider  his  position.    He  refused  to  do  so.    The  complainant maintained she was entitled to the information and referred to the Act.  The Tribunal accepted the complainant’s evidence that at the time C told her his only mistake was that he had put a note on her file which had led to the disclosure of the fact he had the information.  The complainant again left the surgery feeling aggrieved, hurt and angry.

[14]     C took advice.  On 12 November 2004 he formally replied to the letter the complainant had given him.  He referred to the Evidence Amendment Act (No. 2)

1980 and also said that if her husband were to agree the information could be made available, alternatively, he said he would abide the finding of a Court.

[15]     On 31 December 2004  the complainant complained to the Office of  the Privacy Commissioner.  On 20 January 2005 the Privacy Commissioner asked C to provide her with a copy of the information he was holding.

[16]     In the meantime, the husband saw C again on 22 February 2005.  He gave him a further document.  The document recorded the husband’s notes of a meeting he had had with the Court appointed psychologist in August 2004.

[17]     Although the complainant returned to the practice on a number of occasions during 2005, she saw other doctors rather than C.   She ultimately transferred to a different practice in early 2006.

[18]     During 2005 the Privacy Commissioner continued her investigation.  There was an exchange of correspondence between the office of the Privacy Commissioner and C’s counsel.  The correspondence identified the competing assertions and views as to the respective rights and responsibilities of the parties.

[19]     On 8 November 2005 the Privacy Commissioner advised that in her opinion C was in breach of principle 6 of the Act and had caused an interference with the complainant’s privacy.

[20]     On  31  January 2006  C  agreed  to  make  the  information  available  to  the

Privacy Commissioner.

[21]     In early May 2006 C again sought to persuade the husband to give permission for the information to be provided to the complainant but the husband remained opposed to doing so.

[22]     On  24  May  2006  the  Privacy  Commissioner  finalised  her  opinion  and confirmed that, putting aside a small part of the material which was not personal information  about  the  complainant,  C’s  failure  to  provide  the  complainant  with access was a breach of Principle 6 and an interference with the privacy of the complainant.  The matter was then referred to the Director.

[23]     In the meantime, and with the assistance of counsel, C continued to seek a release from the husband in relation to the documents.   Ultimately a release was obtained.  C’s counsel provided the information to the Director on 13 April 2007.  It was then made available to the complainant.

[24]     During this period the Family Court proceedings were progressed.   In May

2005 there was a hearing in relation to custody and access which resulted in shared care arrangements.

[25]     The complainant’s husband took his life in the middle of 2008.

The material in issue

[26]     As noted, the material the husband provided C with was provided in three tranches.   The first set of information was copies of documents that had been produced in the Family Court.  When she ultimately received these documents the complainant accepted that she was not surprised by that information because she had already seen it.   It had also been relied upon by her husband in the Family Court proceedings.

[27]     The second category of documents comprised three letters the husband had written to the Court appointed psychologist, Ms Sarah Calvert.   These were the documents sent by the husband to C in August 2004.

[28]     The third and last category of documents were the two pages of notes the complainant’s husband had made of a meeting with Ms Calvert.

The decision

[29]     The Tribunal commenced its decision with the observation it had been invited to send a “strong message” to medical practitioners that they cannot escape the application of the Act unless there was a relevant qualification or exception within the Act that applied in the particular circumstances.

[30]     As  C  does  not  challenge  the  declaration  that  his  refusal  to  give  the complainant access to the personal information was an interference with her privacy, we focus on the Tribunal’s reasoning to support the award of damages and its refusal to grant name suppression.

[31]     The Tribunal noted that for a period of some two and a half years after she first learnt that C was holding information about her, the complainant did not know exactly what that information was.  It concluded that the complainant had suffered significant humiliation, loss of dignity and injury to her feelings as a result of C’s conduct, including:

a)       feelings of anger, humiliation and betrayal when refused access to the information by C on the two occasions she directly raised the matter with him;

b)uncertainty over a period of two and a half years of not knowing what it was that was in the papers that C was holding;

c)       feelings of concern and uncertainty as to what might have happened in the Family Court proceedings if she had had access to the information

when she asked for it.  The Tribunal considered that the complainant had been left with a sense of unfairness over the proceedings;

d)       anxiety and even grief about who might have seen the information;

e)        feelings of annoyance and frustration associated with the sense C was preferring her husband’s interests over her’s.

[32]     The Tribunal was satisfied that in accordance with s 88(1)(c) damages were justified for the humiliation, loss of dignity and injury to the feelings of the complainant.

[33]     The Tribunal accepted that fixing a sum of money to compensate for the kind of distress was an inherently difficult exercise citing Vento v Chief Constable of West Yorkshire Police.1   The Tribunal then noted that they had a sense that awards for loss of dignity had not kept up with inflation over the years.  The Tribunal observed it had not been given particular assistance on the issue of quantum by counsel.   Mr Waalkens had argued the complainant had suffered insufficient harm to warrant any order at all whereas Mr Stevens had referred the Tribunal to s 85(4) and the issue of whether any award that might otherwise have been appropriate might be reduced.

[34]     The Tribunal then noted that awards under s 88(1)(c) ranged between $200 (Proceedings Commissioner v Commissioner of Police)2 to $20,000 (L v N).3   Most awards lay in a range between $2,000 and $7,000.   The Tribunal then referred to Winter v Jans4 where the Court awarded $7,000 to the two plaintiffs for the humiliation that they had suffered ($3,500 each).   The Tribunal adjusted that to reflect the present day value of $5,000 and considered rather more was required in the present case before ultimately fixing the award of damages at $7,500.

[35]     On the issue of name suppression, the Tribunal referred to its approach in

Director of Human Rights Proceedings v Commissioner of Police5 before concluding

1      Vento v  Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 at [50] and [51].

2      Commissioner v Commissioner of Police Decision No 18-00 CRT 10-00, 10 July 2000.

3      L v N (1997) 3 HRNZ 721.

4      Winter v Jans HC Hamilton CIV-2003-419-000854, 6 April 2004.

5      Director of Human Rights Proceedings v Commissioner of Police [2007] NZHRRT 5.

that there was nothing particularly unique or unusual in the matters advanced by C in support of suppression.  The Tribunal expressed concern that granting suppression in this case might set a difficult precedent.  The Tribunal declined to make a permanent order for name suppression.

Issues

[36]     The following issues arise on the appeal.

Damages

a)        Is there jurisdiction for an award in this case?

b)        What is the effect, if any, of s 85(4) in this case?

c)        What is the effect of the documents relating to the Family Court proceedings?

d)       Quantum.

Name suppression

a)        Is the further evidence admissible?

b)        What is the appropriate test for name suppression?

c)        Should there be name suppression in this case?

Jurisdiction

[37]     Mr Waalkens submitted that the only statutory mechanism for an award of damages was under s 66(1)(b) and particularly s 66(1)(b)(iii).  That submission

raises the issue of whether s 66(2)  of the  Act  operates independently from the provisions of s 66(1).  The issue was identified in Winter v Jans6 as:

Whether s 66(2) creates additional actions which are interferences with the privacy of an individual, and which do not come within the definition in s 66(1).

In Winter v Jans7 the Court concluded that:

those actions which are interferences with the privacy of an individual under s 66(2) are additional to those interferences with the privacy of an individual

... under s 66(1).

It followed that s 66(1)(b) does not apply to those actions which fall within s 66(2).

[38]     On the facts in this case it is not strictly necessary for this Court to reconsider the  decision of  Winter  v  Jans.    It  is  plain  from  the  Tribunal’s  declaration  and decision that C’s actions breached principle 6, that the Tribunal found C’s actions were in breach of s 66(1)(a)(i) and that the Tribunal considered that C’s actions resulted in significant humiliation, loss of dignity and injury to the complainant’s feelings under s 66(1)(b)(iii).  There was then jurisdiction for an award of damages: ss 85 and 88.  For the reasons that follow, we agree with the Tribunal’s assessment that C’s conduct caused significant humiliation and significant injury to the feelings of the complainant so that there was jurisdiction for a damages award.  It is therefore unnecessary to consider the application of s 66(2) in this case.

[39]     Mr Waalkens next criticised the Tribunal’s finding that C’s breach led to significant humiliation, loss of dignity and injury to the complainant’s feelings.  He submitted no award should have been made at all.  However, with the exception of the Family Court issue we accept the Tribunal’s findings were open to it on the evidence and that the facts of this case support an award of damages.

[40]     The  various  points  that  Mr  Waalkens  made  to  challenge  the  award  of damages do not address the principal basis for the award of damages identified by Mr Stevens, which is that over an extended period of time of two and a half years the complainant was aware that C held personal information concerning her but that she

6 At [68].

7 At [81].

did not know the detail of it.  The fact that when it was finally disclosed to her it contained  information  that  she  had  seen  before  (at  least  in  relation  to  the  first tranche) does not make the effect on her during that long period any less.

[41]     We accept the uncertainty of not knowing what was in the papers for that length of time, particularly when she knew they had been provided by her husband who she was separated from, would have been a real cause of concern to the complainant.

[42]     We do not however consider her concern about who else may have seen the information was justified.  C made it clear to her that he was careful to ensure that the information was kept secure.

[43]     We also accept the Tribunal’s findings that when the complainant initially learned C held such information but refused to give her access to it, she would have experienced feelings of anger, humiliation and betrayal particularly given her relationship with C as her family doctor and the circumstances in which it came to her attention and the way C dealt with the matter.

[44]     Finally, we accept that the complainant would have felt, as the Tribunal noted, annoyed and frustrated because of her sense that C was preferring her husband’s interests over her’s.

[45]     We  conclude  that  C’s  actions  resulted  in  significant  humiliation  and significant injury to the feelings of the complainant.   An award of damages was justified.  The issue is quantum.

The effect of s 85(4)

[46]     Section 85 provides for the remedies available for an interference with the privacy of an individual.  Section 85(1)(c) provides that damages may be fixed in accordance with s 88.  Section 85(4) provides:

It shall not be a defence to proceedings under section 82 or section 83 of this

Act that the interference was unintentional or without negligence on the part

of the defendant, but the Tribunal shall take the conduct of the defendant into account in deciding what, if any, remedy to grant.

[47]     Section 85(4) is mandatory in its terms.  The Tribunal is directed to take the conduct of the defendant into account in deciding what, if any, remedy to grant. Apart from observing that Mr Stevens drew the Tribunal’s attention to s 85(4) it does not appear that the Tribunal directly considered the subsection in the present case.

[48]     Mr Stevens submitted that s 85(4) might be seen as odd in a regime which provides for compensatory rather than punitive damages.  He referred to the case of MacMillan v Department of Corrections8 as an example of how the section ought to be applied.   In that case the Department was faced with a difficult decision in relation to information it held about a prisoner.   As the Tribunal noted, the Department’s decision to withhold the information for a period of time “involved a judgment call that was not altogether straightforward” which led to the Tribunal making an award of damages, but only at a modest level ($1,200).

[49]     While accepting Mr Stevens’ point that the purpose of the damages award is compensatory, the conduct of the parties can still be a relevant consideration.  The concept of compensation can be assessed on a broad basis, taking into account the loss or harm suffered by the complainant but also considering the actions of the infringing party.

[50]     On the facts of the present case C’s conduct and the situation he found himself in is a relevant consideration.

[51]     We agree that C should not have taken the papers in on the basis he did.  For that reason the declaration is appropriate as C now acknowledges.  There has also been an effect on the complainant who has, as a consequence of C’s actions, suffered significant humiliation and injury to her feelings.   While an award of damages is therefore justified, in fixing the quantum it is still appropriate to consider the circumstances in which C found himself in when he accepted the documents.  C was the husband’s doctor.  He was in a consultation with the husband at the time.  The husband provided the papers to him in the course of that consultation.  As C said, the

8      MacMillan v Department of Corrections [2004] NZHRRT at 41.

documents were made available on the basis that they may be relevant in relation to C’s treatment of the family.   C considered it important to retain the husband’s confidence and rapport as essential qualities in their doctor/patient relationship.  C was clear in his view that had he declined to accept the papers that would have significantly upset the husband and undermined the doctor/patient relationship.  The fragility of the husband’s mental state is confirmed by his subsequent suicide.

[52]     C was presented with a difficult situation.  Once he accepted the documents he was in a position of potential conflict.  The Tribunal’s comment at para [55] of the decision that he should have said to the husband:

If you give me these papers about the complainant and she asks me to disclose them to her under the Privacy Act, I may have to do so.  I cannot guarantee the confidentiality you are asking for.  It might be better if you did not leave these papers with me for that reason.

is, with respect, made with the benefit of hindsight.  While not perhaps a difficult judgment call as in MacMillan, C was put on the spot in the circumstances he found himself in during the consultation with the husband.  We accept that C did not set out to cause distress to the complainant and accepted the documents from the husband in good faith.

[53]     Once C accepted the documents he was fixed with a conflict which it was effectively impossible for him to resolve without either breaching the confidence with the husband or breaching the obligations to the complainant under the Act. With hindsight and with the benefit of this case C would not do the same again.  Nor should other practitioners who will learn of this case.  It is, however, understandable how and why C took the documents in the first place.

The impact of the Family Court proceedings

[54]     In the course of its decision and in support of the award of damages the

Tribunal identified the complainant’s feelings of concern and uncertainty as to what

might have happened in the Family Court proceedings if she had been given access to the information when she asked for it.  The Tribunal said:9

We are not suggesting the outcome would necessarily have been different; we do not know.  What is clear is that the complainant has been left with a sense of unease over the proceedings that she would not otherwise have had.

[55]     The  Tribunal  then  noted  that  there  was  some  echo  with  the  cases  of Proceedings   Commissioner   v   Health   Waikato10     and   CBN   v   McKenzie   & Associates.11

[56]     A number of points arise.   First, as the Tribunal observed the award under this head in Health Waikato was made under s 88(1)(b) as damages for a lost benefit. The Tribunal did not make an award under s 88(1)(b) in the present case.  Nor on the evidence could it have done so.  There was no admissible evidence of a lost benefit. As Mr Waalkens pointed out, the principal passages of the complainant’s evidence relating to this issue and her evidence that she felt she lost the opportunity to run her case differently was deleted by agreement.

[57]     Next, the Health Waikato decision was quite different factually.  In that case the complainant took proceedings before the Employment Tribunal against Health Waikato.  Health Waikato held letters relating to the complainant.  The complainant sought those letters.  Health Waikato withheld them and the Employment Tribunal proceeded to deal with the case in the absence of that material.  The Court noted that in the hands of even reasonably competent counsel the letters would have enabled a strong line of cross-examination to be pursued which, in the Court’s view, would have made it very difficult for the employer to deny it wanted to get rid of the

complainant.12

[58]     That is a quite different situation to the one before the Court in this case.  The first tranche of material accepted by C was before the Family Court.  The second and third tranches were letters or notes authored by the complainant’s husband.   The suggestion that that would have provided some basis for the removal of the child

9      At [71][c].

10     Proceedings Commissioner v Health Waikato (2000) 6 HRNZ 274.

11     CBN v McKenzie & Associates [2004] NZHRRT 48.

psychologist which might in turn have led to a different outcome is entirely speculative.

[59]     At most the position is that the complainant was left with a sense of unease. That of itself does not support an award of damages based on significant humiliation, loss of dignity or injury to feelings.

Quantum

[60]     While we agree with the Tribunal that an award of damages was justified to compensate the complainant for the humiliation and injury to her feelings in our judgment the Tribunal has fallen into error in fixing the award at $7,500.

[61]     It has fallen into error in three principal ways.  First, it misdirected itself by setting out to send a strong message to the medical professional about this matter and, inferentially, fixing the damages at a level to underline that strong message. What was required was to clarify that privacy principles under the Act trumped doctor/client confidentiality in this case.  That did not require a damages award at the level fixed by the Tribunal.  Next, we consider the Tribunal was not justified on the evidence to factor into the award anything for the “lost opportunity” in the Family Court.   Finally, we also consider that the Tribunal failed to give effect to s 85(4) given the situation that C found himself in.

[62]     We note that in Winter v Jans case a compensatory award of $3,500 to each complainant was made.   In the case of Waikato Health an award of $2,000 was made.  Even taking account of the need to keep the level of the award relevant and the length of time the complainant was denied access to the information, we are still left with the view that $7,500 was, in the circumstances of this case, excessive.

[63]     While we agree with the Tribunal’s observation that fixing a sum of money to compensate in these circumstances is difficult we consider that in the circumstances of this case an appropriate award of compensation could not have exceeded $5,000.

Name suppression

Further evidence on appeal

[64]     The  appellant  seeks  to  produce  an  affidavit  from  his  practice  partner  to support the application for name suppression in relation to the practice.  Mr Stevens takes the point that leave must be granted to adduce further evidence on appeal: r 20.16 High Court Rules.

[65]     The application to adduce the further evidence arises from the Tribunal’s decision as to name suppression and particularly its comments that there was no separate application by the practice for suppression and that:13

It would certainly have been helpful to have had some input from someone else at the practice to assess what the likely impact of publication of the defendant’s name in connection with the substantive decision might be for the practice.

[66]     With respect we are unable to accept that reasoning of the Tribunal on this point.  The application was made in relation to both C and his practice.  C was quite entitled to bring that application as a principal of the practice.   In his evidence in support of the application he referred to the risk of harm to the practice as well as to his personal reputation.

[67]     If the matter turned on the issue of whether there was a separate application or further evidence on behalf of someone else from the practice (as opposed to C) we would have been minded to allow the further evidence in.  However, for the reasons that follow we consider it unnecessary for the further evidence to be adduced in any event.

[68]     In declining name suppression the Tribunal took the opportunity to reaffirm its approach in Director of Human Rights Proceedings v Commissioner of Police. The Tribunal observed that C had not put forward anything very unique or unusual

and took the view that neither individually nor collectively were the considerations advanced on his behalf sufficient to justify an order for suppression.

[69]     Mr Stevens supported the Tribunal’s decision to decline name suppression but acknowledged that the Director had expressed sympathy for C’s concern about the possible effect of publication of his name on his partner in the practice and his family.

[70]     We confirm that the general approach identified by the Tribunal in Director of Human Rights Proceedings v Commissioner of Police is correct, namely that the starting point is publication is permitted.   The question is whether in the circumstances of the particular case and on the evidence before the Tribunal, it is desirable that publication should be prohibited, in the sense that the considerations of openness in the proceedings before the Tribunal, the right of the media to report the result, freedom of speech and the impact of s 14 of the New Zealand Bill of Rights

Act 1990 are outweighed in the particular case.14

[71]     In support of the application for name suppression C deposed that he is a co- owner  of  the  practice  with  another.     The  practice  employs  four  GP’s,  two receptionists and four practice nurses.  C has never been the subject of any adverse findings or determinations or the subject of a disciplinary charge or competence complaint to any professional body including ACC.

[72]     C’s name is synonymous with the practice.  The practice is located in a small community where word of mouth carries a long way and publicity of his name would jeopardise the practice and likely affect the livelihoods of other staff.

[73]     C says he is concerned that publication of his name would cause irreparable harm to his good reputation, livelihood and impact adversely on his patients as it may unnecessarily affect their trust and confidence in him as their doctor which would unquestionably impact adversely on their health generally.

[74]     C’s surname is distinctive.  He has two children aged 25 and 23 respectively. C says that being named in conjunction with the proceedings would be extremely embarrassing for them and upsetting for his elderly mother aged 91.

[75]     In a second affidavit in support of permanent name suppression C advised that since his earlier affidavit his mother had died.  He gave further details about the client base.   C estimates between 10 and 15 per cent of his patients are being managed for illnesses or symptoms related to depression, anxiety and stress and of those, about 30 per cent require ongoing and long term care for those symptoms and conditions.   C also manages other patient groups who are vulnerable or anxious, including the elderly.

[76]     C deposed that lack of confidence can and does lead to patients discontinuing medication or treatment.

[77]     The Tribunal accepted that this was not a case where there was a public interest in identifying C so as to reduce the risk of repetition but dismissed the above matters as not being sufficiently unique or unusual to justify name suppression.

[78]     While the test is not whether there are unique or unusual features of the case, the circumstances in which C came into possession of the material and the conflict that he then found himself in were unusual.   In 25 years’ practice C has not experienced anything like it before.  It seems to be the first case of its kind.  It is an important case to clarify the effect of the Act and to inform the medical profession as to their responsibilities in terms of the Act.   But that purpose is achieved by publication of the terms of the decision itself.  The identity of the doctor concerned adds nothing to that process.  Although a case involving disciplinary proceedings the

following  comments  of  Ellis  J  in  J  v  New  Zealand  Psychologists  Board15   are

applicable to the present case:

... bearing in mind the fact that it was an error of professional judgment rather  than  any  moral  or  professional  turpitude  I  consider  the  Board misjudged the public interest and the public’s need to know the practitioner’s name.  What the public, and the practitioner’s professional colleagues need to  know  is  the  facts  of  the  matter  and  the  standards  expected  by  the

profession represented by the Board.  That is met by a publication of a précis of the case.  Further, I think the damage to the practitioner would be out of proportion to his culpable conduct.

[79]     We are not able to accept the Tribunal’s reasoning that:16

While Mr Waalkens is right to say that this is not a professional disciplinary case, it does not follow that there is no public interest in knowing what has happened, and even who the defendant was, in order to inform future decision-making.

[80]     We agree with Mr Waalkens’ submission that suppression of C’s name and the practice in no way impacts upon the public interest and knowing what has happened.  Further, the suggestion that publication was necessary in order to inform future decision-making was unreasonable.  C took and acted on advice regarding the matter.  C has never been the subject of any disciplinary complaints.  There is no suggestion that publication of his name is necessary in order for existing or potential patients to make future decisions as to their medical care.

[81]   We do, however, agree with the Tribunal’s rejection of Mr Waalkens’ submission that the media was notoriously unreliable in relation to the accuracy of its reporting.  A decision on name suppression cannot proceed on the basis the media will not report in an accurate way.

[82]     We also agree with the Tribunal’s assessment concerning the possibility of harm  to  C  and  his  family personally.    Identification  of  C’s  surname  would  be personally uncomfortable for him and his family but of itself that would not be sufficient to support name suppression.

[83]     However,  we  do  consider  the  Tribunal  fell  into  error  in  rejecting  the submission that publication would cause irreparable and unwarranted harm to C’s medical practice, the practice generally and importantly the patients of the practice.

[84]     The Tribunal rejected C’s expressed concern as to the effect of publication on those vulnerable patients among his patient list.  The Tribunal referred to the very uncertain  group of elderly patients, as  at most  being a small percentage of the

defendant’s overall patient base.  The Tribunal suggested that in the absence of any more specific information it regarded the assertion that patients may stop their medication as being speculative at best.

[85]     The Tribunal appears to have overlooked that C’s evidence was not limited just to the effect on elderly patients.  C also referred to the 10 to 15 per cent of his patients who are being managed for depression, anxiety and stress concerns, 30 per cent of whom required ongoing and/or long-term care for the symptoms and conditions.   Given the vulnerability of people suffering from depression or stress, this was an important consideration.  There is no suggestion that C’s evidence that those suffering from depression and anxiety symptoms would suffer from a lack of confidence if his name was published and that such lack of confidence could lead to the discontinuation of their treatment was incorrect.

[86]     Mr Stevens suggested that if the Court was to grant an order for permanent suppression in this case it would have to explain to the complainant in the Director of Human Rights Proceedings v Commissioner of Police case why there was name suppression.  We do not accept that submission.  The general principles established in that case are, as we have noted, correct.

[87]     The issue for the Tribunal and Court must be whether, on the facts and evidence in the particular case, an application of those principles leads to a determination that suppression of the complainant or another party name associated with the case is desirable or not.   In the Director of Human Rights Proceedings v Commissioner of Police there was no evidence before the Court to support the general submission in support of name suppression.

[88]     The situation in the present case is quite different.  There is evidence before the Court which raises a number of considerations, particularly the effect on C’s professional practice, the practice  generally, and the vulnerable members of the practice which in our judgment makes it desirable for there to be name suppression.

Result

[89]     The appeal is allowed.  We set aside the award for $7,500 and replace it with an award of $5,000.  We also make a final order prohibiting publication of C’s name or any details that may identify him or his medical practice.

Costs in this Court

[90]     The appellant has partially succeeded on the appeal.   However, we have found that an award of damages was appropriate and justified in this case.   In the circumstances we propose to leave costs to lie where they fall on this appeal.  We make no order for costs in favour of either party.

…………………………       ………………………           ……………………….. Venning J      G Cook JP  R Musuku