Dr J v New Zealand Psychologists Board HC Wellington Ap34/01

[2001] NZHC 636

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP34/01

PROHIBITION ON PUBLICATION OF THE NAME OF THE APPELLANT

IN THE MATTER of the Psychologists Act 1981

AND IN THE MATTER of an appeal pursuant to section 35 of the Act from a decision of the New Zealand Psychologists Board

BETWEEN [Dr J], Registered Psychologist
Appellant

AND NEW ZEALAND PSYCHOLOGISTS BOARD
Respondent

Hearing: 28 June 2001

Counsel: L. Taylor with B. Heenan for Appellant
K.G. Stone for Respondent

Judgment: 11 July 2001

JUDGMENT OF ELLIS J.

Solicitors: Rudd Watts & Stone, Wellington for Appellant
Luke Cunningham & Clere, Wellington for Respondent

[1] This is an appeal against the decision of the Psychologists Board refusing to suppress the name of the practitioner. Complaint was made against him by two prison officers who complained he had misconducted himself at a hearing before the Employment Tribunal where they had brought proceedings against the Department of Corrections. The complainants had been working in a unit of [C] Prison. This unit had been established to assist in the management of severely disturbed inmates and was staffed by a small team of three, including the complainants. The practitioner was employed at the [V] Prison and held weekly supervision meetings of two hours duration for the staff of the unit. The supervision was not in the nature of clinical supervision, but was in the nature of training sessions. A dispute arose between the new manager of the prison and the complainants, and in August 1997 the complainants were advised they were not to return to the prison and were placed on special leave. They lodged a personal grievance claim and obtained supporting medical evidence from a doctor and he produced psychological reports. The practitioner was asked by his employers to give evidence as to his opinion of the doctor’s reports. He gave evidence and expressed his opinion as to the complainants mental state on the basis of his observations of the two officers at the supervision meetings, the doctor’s reports, and information from other staff members. He expressed his opinion in strong terms. This evidence was the basis for the complaints.

[2] After hearing evidence and submissions the Board found the practitioner guilty of conduct unbecoming a registered psychologist in that in the course of his evidence to the Tribunal he made a possible diagnosis of the complainants without adequate assessment and without the informed consent of the complainants. That finding is not challenged on appeal.

[3] The Board later considered the question of penalty and imposed a censure, saying “it is indicative of the approbation of his peers”. Counsel before me agreed the Board meant disapprobation, and I only mention it as I was told it has appeared in other Board decisions. The Board then ordered the practitioner to pay $4,000 towards the costs of the prosecution, about 20% of the actual costs, and as to publication of the facts of the case the Board said:

“The Board directs, in the public interest, and to provide information to the profession as is its responsibility under Section 4(d) of the Act, that a precis of the case, including information on penalty and costs be published.

The Board does not accept the submission by [Dr J]’s counsel that this is not a case which involves a high degree of public interest and that no consideration needs to be given to warning the public or potential future clients. In the context of the matter before the Board, [Dr J] had an obligation to the complainants - in the supervision/training setting the complainants were the ‘clients’.

Publication will not occur until the expiry of the appeal period or the completion of any appeal hearing. The names of the complainants, at their request will not be published.”

[4] The appeal is against the refusal to suppress publication of the practitioner’s name. Mr Taylor submitted that the case involved the practitioner confusing his managerial and professional roles, and drew attention to the fact the Board had agreed that was the case. The Board further stated that the conduct did not warrant a severe penalty and that there was no evidence that the practitioner was motivated by self advancement. It referred too to two very favourable personal references written by the practitioner’s professional colleagues, who despite the outcome of the present proceedings, speak very highly of his professional standing and motivation.

[5] Mr Taylor submitted that the public interest in the proceedings was fully satisfied if a precis of the case with no naming of the complainants or the practitioner was published. He submitted that the Board was wrong to refer to the complainants as “clients”. Mr Stone drew my attention to the New Zealand Psychological Society Code of Ethics (1986) where “clients” is expansively defined as “individuals, groups, communities, organisations or institutions who are the focus of psychologists’ professional services”, and the preface to section 5 relating to “Professional Relations” states:

“Psychologists do not exploit their professional relationships with clients, supervisees, students, employees, research participants, colleagues in psychology or other professions. They ensure that clients are fully informed of all aspects of the services offered and obtain their informed consent to participate and remain in interventions”.

[6] I am satisfied that the reference to “clients” in inverted commas was not intended to elevate the complainants to the status of a client in the ordinary sense, but to refer to the special relationship, from a professional point of view, that the practitioner had with the complainants as a specialist supervisor who as part of the supervision was involved with psychological aspects of the complainants’ behaviour. I therefore reject Mr Taylor’s submission that the Board misdirected itself on this issue or that it proceeded without the practitioner being able to make submissions on the point. The reference to “clients” is simply an effort to describe an aspect of the relationship which was not really in dispute.

[7] As far as punishment is concerned, I agree that the practitioner has been adequately punished by the censure and order for costs.

[8] There are some legal aspects of the Board’s jurisdiction that should be mentioned. The 1981 Act expressly provides in s 33(7) that the Board’s hearings shall not be open to the public unless the Board otherwise directs. I understand the Board’s practice is to sit in private and did so in this case. Further, there is no explicit power to order publication of a practitioner’s name. The power to do so is derived from s 4(d) which is a power to promote and encourage high standards of professional conduct among psychologists. On that basis, penalty apart, publication of a precis of the case without mentioning names should be enough. I was referred to two other decisions of the Board where this was done. The decisions have no name (that being suppressed) but they are dated 17 March 2000 and 12 December 2000. In each case the penalty was censure and an order to pay 20% of the costs of prosecution. While the cases are not similar, the degree of seriousness plainly is reflected in identical penalties. I was also referred to the leading case of R v Liddell [1995] 1 NZLR 538 C.A. and to the decision of Chisholm J in Haye v Psychologists Board [1998] 1 NZLR 590. The latter case involves very different facts and the practitioner pleaded guilty to professional misconduct. Liddell involved the conviction of a man on four counts of sexual abuse of children. Cooke P delivered the Judgment of the Court and discussed the appropriateness of suppressing the offender’s name. At page 547 the President referred to conviction on “trivial” charges where the damage caused the offender outweigh any genuine public interest in publication. He said that suppression may be in order depending on the circumstances. The remarks were made in the context of criminal charges. Here the charges are not criminal, but neither are they trivial. However, I consider the balance is between the damage caused to the offender and the public interest in publication.

[9] The Board considered that the public and potential future clients of the practitioner should be warned about the practitioner. I think this is greatly overstating the danger. I think the unusual situation, the mixed managerial and professional functions performed by the practitioner and the two testimonials I have referred to strongly negative the need to warn the public about the practitioner.

[10] Approaching the matter in this way and 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 precis of the case. Further, I think the damage to the practitioner would be out of proportion to his culpable conduct.

[11] The appeal is accordingly allowed to the extent that as part of the penalty decision there will be an order that the practitioner’s name be not published, otherwise all aspects of the decision are confirmed.

[12] There will also be an order that the appellant’s name shall not be published in relation to this appeal.