Geary v Professional Conduct Committee HC Wellington CIV 2009-485-2641
[2010] NZHC 1315
•22 July 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2009-485-002641
IN THE MATTER OF An appeal under s 106 Health Practitioners
Competence Assurance Act 2003
BETWEEN IAN RUSSELL GEARY Appellant
ANDPROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 16 June and 19 July 2010
Counsel: A Beck for Appellant
P J Radich and L I Van Dam for Respondent
Judgment: 22 July 2010
JUDGMENT OF WILD J
Introduction............................................................................................................... [1] Approach................................................................................................................... [4] The broad background .............................................................................................. [5] Disclosures to the Police ...................................................................................... [9] Disclosures to X’s former husband..................................................................... [12] The complaint, the challenges and the charges....................................................... [14] Privilege .................................................................................................................. [17] Admissibility........................................................................................................... [40] Professional misconduct ......................................................................................... [47] Penalty .................................................................................................................... [67] Name suppression ................................................................................................... [79] Costs........................................................................................................................ [80]
Introduction
[1] Mr Geary is a psychologist. He appeals against two decisions of the Health
Practitioners Disciplinary Tribunal (the Tribunal). The first, on 16 October 2009,
GEARY V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2009-485-002641 22 July 2010
found him guilty of professional misconduct amounting to both malpractice and serious negligence, warranting discipline. The second, on 21 December 2009, imposed various penalties including cancelling Mr Geary’s registration as a psychologist. Respectively, I will refer to these as the liability and penalty decisions.
[2] Mr Geary appeals on the ground that the Tribunal erred in these respects:
a) Professional misconduct: Finding him guilty of professional misconduct warranting sanction.
b)Privilege: Holding that the communications between Mr Geary and Y, and between Mr Geary and the Police, were not privileged, and were admissible in evidence.
c) Admissibility: Holding admissible evidence of communications between Mr Geary and the Accident Compensation Corporation (ACC).
d) Penalty: Cancelling his registration.
e) Name suppression: Declining to suppress Mr Geary’s name pending the outcome of this appeal.
[3] Mr Geary filed his appeal on 23 December 2009. It is thus out of time in respect of the liability decision. The respondent accepts the sense of Mr Geary awaiting the penalty decision before filing any appeal. It consents to an extension of time for appeal. Pursuant to s 106(4)(b) Health Practitioners Competence Assurance Act 2003 (the Act), I extend time for appeal to 23 December 2009.
Approach
[4] Section 109(2) of the Act provides that the appeal is by way of rehearing. Counsel agree that the approach laid down by the Supreme Court in Austin, Nichols
& Co. Inc v Stichting Lodestar [2008] 2 NZLR 141 governs the grounds of appeal
alleging error in the liability decision, while Mr Geary’s challenge to the cancellation of his registration is governed by the principles laid down by the Court of Appeal in May v May (1982) 1 NZFLR 165. In short, Mr Geary must persuade me that the Tribunal’s decisions are wrong.
The broad background
[5] In 2001-2002 Mr Geary counselled a woman I will refer to as X for past sexual abuse. She was referred by the ACC. In 2003 X made a compensation claim to the ACC in respect of sexual abuse. The ACC obtained an assessment report from Dr M in respect of X’s claim. X then sought a review of the ACC’s compensation decision, and Mr Geary accompanied her to the review hearing in October 2003. In the course of that hearing X became aware that Mr Geary had not sent any counselling reports to the ACC. On 17 November 2003 X laid a complaint with the Psychologists Board. The Board heard a resulting disciplinary charge against Mr Geary in March 2005, issuing its liability decision in May, and its penalty decision in June, 2005. The Board found Mr Geary guilty of professional misconduct and conduct unbecoming a psychologist. All the charges had related to Mr Geary’s conduct toward X, including making an inappropriate disclosure to her about the detail of sexual abuse in other cases he had dealt with.
[6] Mr Geary represented himself before the Board. He formed the view that X’s evidence to the Board was inaccurate and untruthful. In his evidence to the Tribunal Mr Geary said:
While (X) was giving evidence, it seemed to me that both her evidence-in- chief and cross-examination was full of lies and embellishments. When I later read through her documents presented at the hearing, I was confirmed in my belief that much of her evidence was fabrication.
[7] On 21 July 2005 Mr Geary filed an appeal to this Court. For reasons not presently relevant, Ronald Young J allowed the appeal in part. What is relevant is that part of the judgment of 28 May 2007 in which Ronald Young J dealt with Mr Geary’s attack on X’s credibility. It is sufficient to quote two passages from the judgment:
[45] I have read all of the evidence including the cross-examination of both the complainant and the appellant. The appellant personally cross- examined the complainant. The cross-examination by Mr Geary of the complainant had an inappropriate personal tone to many of the exchanges. What is clear, however, is that significant latitude was given to Mr Geary in his cross-examination of the complainant by the Board. Much of the material seemed of marginal or no relevance to the issues before the Board. Significant parts of questions were simply statements by Mr Geary about his position. However, Mr Geary could not possibly complain about not being able to range over the full field of topics that suited him.
...
[47] I am satisfied that the credibility findings made by the Board were legitimately open to them and that there was no unfairness to the appellant in the way that this was done either in the conduct of the litigation itself or in the conclusions reached by them.
[8] It is the actions Mr Geary took pursuant to his belief that X had lied to the Board that are at the heart of the Tribunal’s decisions, and of this appeal. Mr Geary sought to justify those actions on the ground that it would assist his appeal if he could persuade the Police to investigate X and prosecute her for perjury. That view is the basis for most of Mr Geary’s grounds of appeal. But the Tribunal held that Mr Geary’s actions amounted to professional misconduct. I turn now to summarise what Mr Geary did.
Disclosures to the Police
[9] On 30 May 2005 Mr Geary sent the Police at Christchurch a lengthy, detailed letter. The letter had some 69 pages of attachments, many of them containing sensitive and personal information which X had provided to Mr Geary during their counselling sessions. Identifying X, Mr Geary asserted to the Police that X’s claims of sexual abuse were false and that she had perjured herself at his disciplinary hearing before the Board. His letter described X as “mischievous” and as “a compulsive liar”. Mr Geary concluded his letter by asking the Police to investigate his allegations. One of the bases on which Mr Geary attempted to establish that X had falsified her evidence to the Board is not clear from Mr Geary’s letter, but emerged during the hearing before the Tribunal. X had written notes on the report of Dr M. The report, thus annotated, was included in the documentary evidence for the Board hearing. Even though X had not referred to the report in her evidence before
the Board, Mr Geary maintained X had lied because some of her handwritten notes were wrong eg X stated a sexual attack had been reported to the Police when Mr Geary asserted it had not.
[10] On 14 June 2005 the Christchurch Police advised Mr Geary that his complaint that X had given false evidence to the Board was most appropriately dealt with in his appeal to this Court, and that he should refer his allegation that X had defrauded the ACC to the ACC. In a series of emails through to mid-July 2005, Mr Geary sought unsuccessfully to persuade the Christchurch Police to pursue his complaint. He then turned to the Police at Timaru, writing to them on 17 November
2005. Again, he alleged that X had committed fraud and perjury. He was critical of the detective in Christchurch who had refused to pursue his complaint and asked the Timaru Police to do so.
[11] On 8 February 2006 Mr Geary wrote again to the Timaru Police. This time he attached some of the confidential documents which had been annexures to his 30
May 2005 letter to the Christchurch Police, and part of the transcript of evidence from the Board’s March 2005 hearing including detail suppressed by the Board. In this letter Mr Geary described X as “a pathological liar with a ... dangerous disposition”.
Disclosures to X’s former husband
[12] Late in February 2006 Mr Geary telephoned X’s former husband, who I will refer to as Y. Mr Geary told Y he had treated X in relation to historical matters, that she had made accusations against him and cost him a lot of money. Mr Geary met Y a few days later at Y’s home. In the course of that meeting, Mr Geary disclosed personal information about X, and showed Y a number of confidential documents, including Dr M’s report. He asked for Y’s response to things X had said, as recorded in these documents. In particular, he asked Y to comment on allegations X had made against Y himself, against other family members and against an English tourist. He left a number of the documents for Y to review and asked Y to revert if he could assist further. In the first half of March 2006 Mr Geary sent three emails to
Y providing further confidential information about X. He asked Y for further information. In an email on 14 March 2006 he wrote:
The Police have been given comprehensive material – last week. Hopefully they will do the job and put pressure on that witch ...
[13] Late in February 2006 the daughter of X and Y told her mother about Mr Geary’s visit to her father. On 28 February 2006 X sent an email to the Board. She said she felt very threatened and mentioned that she had told Mr Geary that Y had had homicidal thoughts toward her. She expressed fear that Mr Geary was trying to wind Y up against her to get his revenge, and asked what she should do. X contacted the Police on 1 March 2006 expressing concern and seeking advice.
The complaint, the challenges and the charges
[14] On 7 November 2006 X made a formal complaint to the Board about Mr Geary’s disclosures to the Police and to Y. The Board referred the complaint to a Professional Conduct Committee (the Committee). An application by Mr Geary for judicial review of that referral decision was dismissed by me in a judgment I gave on
8 December 2009.
[15] On 29 February 2008 the Committee laid professional misconduct charges against Mr Geary, who responded with a further application for judicial review, this time challenging the Committee’s jurisdiction to charge him. The gist of the challenge was that he had made the alleged disclosures after he had finished treating X, at a time when he maintained he no longer had a duty of confidentiality. Clifford J dismissed that application in a judgment he delivered on 28 November
2008, and the Court of Appeal dismissed Mr Geary’s appeal in its judgment reported as IRG v Professional Conduct Committee of the Psychologists Board [2009] NZAR
563.
[16] The Committee’s charges can be summarised thus:
a) In February 2006, without X’s consent or other lawful justification, disclosing to Y confidential information relating to X which Mr Geary
had obtained in the course of his consultations with X, discussing parts of those documents with Y and leaving some of the documents with Y.
b)By email on 4 March 2006, providing to Y without X’s consent or other lawful justification a copy of the letter Mr Geary had sent the Police about X on 8 February 2006, and its enclosures which included Dr M’s report and other confidential information relating to X.
c) By acting in the manner described in a) and b), risking compromising X’s safety in that X had told Mr Geary that Y had previously been aggressive and/or abusive toward X and that she was afraid of Y.
d)In May 2005 and February 2006, writing to the Police disclosing, without X’s consent or other lawful justification, confidential information relating to X including Dr M’s report, other reports to the ACC relating to X and extracts from the transcript of the hearing before the Board in March 2005 which the Board had suppressed.
Privilege
[17] Under this broad heading, Mr Beck made four criticisms of the Tribunal’s decision:
a) The Tribunal misconstrued the law on legal professional privilege. It erred in holding that there is a requirement of “necessity” and a proper process to be followed, and it was incorrect to suggest that Mr Geary could have applied to this Court for leave to disclose confidential information.
b)The Tribunal erred in concluding that Mr Geary’s primary motivation in complaining to the Police was to try and have X investigated and prosecuted. Similarly, it erred in holding that Mr Geary’s disclosures to Y were part of, and were directly linked with, his attempt to have
the Police investigate and prosecute X. On the balance of probabilities, Mr Geary’s dominant purpose was, as he stated, to gain material for his appeal. His communications with the Police and Y were therefore privileged, and were inadmissible in evidence before the Tribunal.
c) The Tribunal was wrong to reject, as a ground justifying Mr Geary’s disclosures, that the disclosures were “necessary” in terms of Rule
11(2)(I)(i) of the Health Information Privacy Code 1994. Mr Geary was fighting for his professional reputation. He was entitled to present the best case he could to this Court on his appeal, and he considered he needed the evidence he attempted to get to advance his appeal. From his perspective, his disclosures were “necessary”. X’s credibility was highly relevant to the Board’s decision. Mr Geary was therefore justified in seeking evidence that would undermine the Board’s credibility findings.
d)The Tribunal was wrong to conclude that there was “no legal justification” for the disclosure to the Police. It is legally justifiable to provide material to the Police in support of a complaint that a criminal offence has been committed.
[18] Mr Beck referred to Mr Geary’s evidence, in this exchange under cross- examination, of his purpose for making the disclosures:
Q. And yet you felt quite able to give it to the police, to ACC, to several people at the police and ACC?
A.Well, I think we live in a democracy and I thought well I do have the right to defend myself, I thought well surely I do. And these were serious charges, and I had to accumulate as much as I could as quickly as I could evidence that would assist in my defence. And it just seems to me it doesn’t make any sense if I have to sit around and wait at the pleasure of some process in order to enable myself to defend myself. I thought that legally I was quite entitled to do it anyway.
(Appeal Bundle 3/90/10-17)
[19] Mr Beck referred also to the supporting evidence of Mr Firth, a friend of Mr
Geary’s. Mr Firth stated:
5.In June 2005, I was aware that Ian (Geary) was intending to appeal the Board’s decision to the High Court.
6.Ian explained to me that he was seeking material to prove that (X) had been untruthful in the evidence she gave before the Psychologists Board. He told me of his plans to go to the Police, and later of his intention to obtain material from (Y).
Mr Beck made the point that this evidence had not been challenged.
[20] I have read all the documentation evidencing Mr Geary’s disclosures. I consider unassailable the Tribunal’s holding that Mr Geary’s dominant purpose in making those disclosures was to have X investigated and prosecuted for fraud and perjury. I accept, as did the Tribunal, that Mr Geary may have had some underlying purpose of furthering his appeal. More particularly, I accept that it may have been in the back of Mr Geary’s mind that a successful prosecution of X might assist his appeal. In its decision, the Tribunal thoroughly dissected the disclosure documentation. I intend setting out only the salient parts that demonstrate why I consider the Tribunal’s holding unassailable.
[21] In his initial, 30 May 2005, letter to the Police at Christchurch, Mr Geary certainly did state:
In my view, supported by documents admitted as evidence at that hearing, and (X’s) evidence under oath, (X) misled the Tribunal.
There is no doubt that (X’s) evidence under oath severely effected my chances of a fair hearing.
(Appeal Bundle 4/92)
But the gist of this first letter is an allegation that X has made fraudulent claims on the ACC, and had perjured herself. Mr Geary concludes his letter with the request:
I ask the Police to investigate my allegations. (Appeal Bundle 4/101)
[22] On 14 June 2005 the Police wrote to Mr Geary advising him that his complaint was “most appropriately dealt with in an Appeal of the Board’s decision which I understand would be conducted in the High Court” (Appeal Bundle 4/118).
[23] Responding to that letter in an email on 23 June, Mr Geary pointed out:
My complaint is not against the Board, or ACC, but against a person who chose to lie. The disciplinary process only has relevance in that it was the environment in which (X) lied.
(Appeal Bundle 4/152)
[24] Mr Geary reinforced these points in a further email on 26 June:
Again, the matter between myself and the Board has no relevance apart from showing the environment against which the allegations are made. (X) lied.
...
I think ... that you need to know that myself and my team have spent hours on this matter and will not be fobbed off. We need to get on with things and as I asserted in the last email I have laid a complaint and will expect the discharge of statutory duties as required. Nothing else will suffice.
...
(Appeal Bundle 4/143)
[25] By 17 November 2005 Mr Geary was writing to the Police (now at Timaru)
in these even more forceful, perhaps even threatening, terms:
... (X) has committed some serious offences ... The offences I allege include fraud and perjury ... I am now asking you formally and finally to do your job
... Analysis shows that (X) supplied fraudulent information to ACC to obtain money – and did so. She also made claims that are injurious to the reputation of the NZ Police ... If my allegations are not treated with respect
and urgency, I intend to take every measure to ensure that my views get maximum traction by following other means ...
(Appeal Bundle 4/166-167)
[26] On 8 February 2006 Mr Geary wrote again to the Police at Timaru. He said he had asked the Police to investigate the matter but had been politely, but firmly, pushed aside. He asserted that X had “denigrated the Police and projected the Police as arrogant, dismissive, and despicable” with respect to their handling of X’s complaints as a victim. He said he wanted to present additional evidence worthy of
investigation and enclosed part of the transcript of the hearing before the Board. He expressed his view that X was “a pathological liar”. Toward the end of his letter he said:
I now request that the Police seriously consider this matter and investigate both matters as well as revisit the opinion of Mr Gaskin.
I am aware of my civic duty in presenting this material and I certainly hope that (X’s) damning allegations against the Police are in fact fictitious. Therefore, such matters should be dealt with immediately and openly. I ask for complete cooperation. The credibility of the Police is an important issue in this regard, as well as other matters.
(Appeal Bundle 4/184)
[27] The Police replied on 10 April 2006 stating that there was insufficient evidence to assert that X perjured herself, and that Mr Geary lacked standing to insist that the Police revisit X’s complaints of sexual abuse. The letter advised Mr Geary that information about those complaints was withheld under the provisions of the Official Information and Privacy Acts.
[28] The following are the salient features of the disclosures Mr Geary made to Y, and the manner in which he made them:
a) Mr Geary tried to get Y to confirm, as inaccurate, claims X had made on the ACC, as recorded in documents he showed Y.
b)Mr Geary seemed surprised when Y told him that some of the claims X had made were true. Y told the Police that Mr Geary had remarked something like “Oh, she can tell the truth?”.
c) Mr Geary left a number of the documents with Y and asked Y to review them again and come back to Mr Geary if he remembered anything else.
d)Mr Geary told Y that X had become “very nasty towards him”. He said she was “stirring things up against him” and that X “had cost him a lot of money”.
e) When Mr Geary was talking to Y about X, Y said he appeared to be very angry and used “very hostile words”.
f) When Y expressed concern about Mr Geary, as X’s former counsellor, showing Y all the information he had, Mr Geary told him that he had checked with his lawyer and that he was entitled to show the information to Y.
g) In a follow up email Mr Geary sent Y on 14 March 2006, he stated “the Police have been given comprehensive material – last week. Hopefully they will do the job and put pressure on that witch. Any thoughts regarding the material I provided?”
[29] The Tribunal was right to hold that Mr Geary’s dominant motive, as it emerged from all the evidence it heard, was to have X investigated and prosecuted for fraud and perjury. The evidence demonstrated hostility and ill will by Mr Geary toward X. Mr Geary’s reference to X as a “witch” cannot be viewed in any other way. I have not overlooked the evidence Mr Beck relied on from Mr Geary himself, and from his friend Mr Firth ([18]-[19]). The point is simply that what Mr Geary wrote and said in the course of his disclosures is far more cogent evidence of his purpose than are the ex post facto explanations of Mr Geary and Mr Firth.
[30] Not stated in, and not emerging from, all the evidence was a dominant purpose of gathering material which Mr Geary could seek to adduce, or put to X, at the hearing of his appeal, with the aim of discrediting X and demonstrating that her evidence to the Board was false. Indeed, as the Tribunal pointed out, Mr Geary was at pains to sideline “the matter between myself and the Board” as of “no relevance apart from showing the environment against which (his) allegations are made”.
[31] That renders it unnecessary to consider the detailed submissions of counsel about litigation privilege. There remain the issues whether Mr Geary could bring himself within Rule 11(2)(I)(i) of the Health Information Privacy Code 1994, and whether Mr Geary’s belief that X had committed criminal offences justified his disclosures.
[32] Rule 11 places limits on Mr Geary on disclosure of confidential information about X. Rule 11(2) permitted Mr Geary to disclose confidential information about X if he believed on reasonable grounds that it was either not desirable or not practicable to obtain X’s authorisation and:
(I) That non-compliance is necessary:
(i)To avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution and punishment of offences ...
Rule 11(3) provides that disclosure “is permitted only to the extent necessary for the particular purpose”.
[33] Mr Beck’s challenge here is to the following part of the Tribunal’s decision
(the Tribunal had just referred to Rule 11(2)(I)(ii) and (3)):
145.The Tribunal does not consider that it was “necessary” for Mr Geary to make the disclosures that he did, in order to report possible offences. In a situation where there were clearly significant duties of confidentiality, it would only have been appropriate, or necessary, for that practitioner to approach the Police with the utmost care. For example, as follows:
145.1 He would need first to discuss the issue with a senior practitioner, so as to ensure he understood the obligations, and if so whether it was “necessary” to take any steps at all. An important consideration at this stage would have been the guidance available from the Code of Ethics as to the circumstances of when it is permissible to disclose (Principle
1.6.10). Such a review would have suggested that what Mr
Geary proposed to do, and the way he proposed to go about it, was not in accordance with the Code of Ethics.
145.2Even if it was considered justifiable to proceed, the practitioner would need to inform the Police that he wished to refer a matter for investigation to them, but that was under an obligation of confidentiality and that there was a suppression order in existence in respect of subject information.
145.3He would need to state the necessary documents should be requested from the Psychologists’ Board by the Police. Such a request would have led to the confidentiality issues being considered in a managed way by the Board.
146.In other words, a very careful process needed to be undertaken which acknowledged and respected the obligations of confidentiality to the greatest extent possible.
147.When approaching the Police, Mr Geary did not go about the matter in this way. He approached the issue in an inappropriate fashion, disclosing multiple documents without regard to the effect on his client, and doing so in an intemperate and unprofessional way.
148.It has already been mentioned that several of the persons involved in the chronology (who were not health practitioners) were concerned about what he was doing – Mr Firth, (Y) and the Police themselves. Mr Geary had no insight into the issues about which they were expressing caution – a fact which the Psychologists’ Board had perceptively identified following the original disciplinary hearing.
149.Accordingly, it is not possible to conclude that it was “necessary” for Mr Geary to make the significant disclosures to the Police about (X’s) private and confidential information.
[34] Mr Beck submitted there is not only one correct way in which a complaint can be laid. While conceding Mr Geary might have made his complaint in other ways, Mr Beck urged that Mr Geary did have a justification for what he said to the Police. Further, Mr Beck contended that the requirements for a prior discussion with a senior practitioner and that the disclosure be “necessary” were not absolute; the question was whether Mr Geary’s conduct was justifiable and his disclosures legitimate.
[35] Mr Beck contended that the disclosures were “very limited”, and had been made solely to establish that X had given untruthful evidence. Mr Beck said that Mr Geary believed – and was entitled to assume – that the Police would treat his claim with sensitivity. Next, Mr Beck distinguished the present case from Duncan v Medical Disciplinary Committee [1986] 1 NZLR 513 (HC and CA), in which Dr Duncan had embarked on an attempt to make confidential information about his patient public (he was organising a petition). Mr Beck submitted that it could not be suggested that X had been put at risk as a result of the information Mr Geary had provided to the Police.
[36] Mr Beck informed me that he could find no examples of findings of professional misconduct in relation to disclosures of potential criminal offending to the Police. Of the small number of case studies published on the Medical Council’s website under the heading “Confidentiality and Public Safety”, the closest to the present case was Duncan. Dr Duncan had, before threatening to organise a petition, sought the assistance of the local police constable to have revoked the driver’s
licence of a patient he believed should not be driving a local passenger bus, because he might have a heart attack at any time. According to Mr Beck, the website commentary on Duncan reads:
The disclosure to the Police was not the subject of the complaint nor was it criticised by the Medical Council or the Courts. It was disclosure to other people that was criticised.
Mr Beck concluded his submissions by submitting that the present case was unprecedented. He contended that the Tribunal had paid scant regard to the potential ramifications of its conclusions which were substantial – its finding effectively provided protection for criminal activity by discouraging the reporting of offences.
[37] I do not accept these submissions. Again, I consider that part of the Tribunal’s decision I have set out in [33] to be unassailable, in that it outlines in a clear and practical way what Mr Geary could and should have done, had his genuine purpose been as he claimed.
[38] I regard what Mr Geary did as approaching the antithesis of disclosure in a professional, responsible and careful manner, restricted to what was necessary for Mr Geary to apprise the Police of his belief that X had committed a criminal offence(s). I view Mr Geary’s actions as more of a crusade against X, doggedly if not obsessively pursued. In terms of legal justification, there was none for his disclosures to Y, and they were the more serious because Mr Geary must have been aware that they could have endangered X.
[39] I soundly reject Mr Geary’s assertion that his disclosures were within Rule
11(2)(I)(ii) and/or were lawfully justified disclosures of suspected crime.
Admissibility
[40] Mr Geary alleges the Tribunal erred in ruling admissible evidence the Committee wanted to lead from the ACC. The thrust of this evidence was that Mr Geary had sent an email to the ACC in November 2005 alleging X had made a fraudulent claim on the ACC, and had repeated that allegation in October 2007,
sending the ACC many of the same documents containing confidential information about X which he had earlier provided to the Police and to Y.
[41] The Tribunal gave its ruling following a brief adjournment on the afternoon of the first day of the hearing, 22 September 2009. The ruling can be summarised thus:
a) The intended ACC evidence was admissible in terms of s 7 Evidence Act 2006 because it tended to establish Mr Geary’s motive for making his various disclosures of confidential information about X, and Mr Geary’s motive was an issue in the disciplinary proceeding.
b)In terms of s8 Evidence Act, the probative value of the ACC evidence outweighed any prejudice to Mr Geary arising from the evidence. There was no unfair prejudice to Mr Geary because he had had the intended evidence for about a month, many of the documents he had disclosed to the ACC were the same as those he had disclosed to the Police and to Y, and the issue of whether he had lawful justification was largely the same in respect of all three disclosures.
c) The intended ACC evidence was admissible under s 40 Evidence Act as evidence of propensity, because it involved “strikingly similar factors” to the disclosures to the Police and to Y. For the reasons already given, the probative value of the evidence outweighed its prejudicial effect.
[42] Mr Beck stressed that Mr Geary was charged with three specific instances of disclosure. He contended that the subsequent disclosures to the ACC could not have been relevant to whether the three specific instances of disclosure were unlawful. He argued that the “issue with the ACC” was an entirely separate one, not the subject of charges against Mr Geary. Further, Mr Beck submitted that the risk of unfair prejudice to Mr Geary from the ACC evidence was real, and indeed had eventuated because the Tribunal had found Mr Geary’s conduct took place over many months and had viewed the disclosure made as very extensive. He contended that it was
likely that the evidence of Mr Geary’s disclosures to the ACC had influenced those conclusions, and also the Tribunal’s conclusion that Mr Geary had been seriously negligent.
[43] Mr Beck next submitted that propensity evidence should not be admitted unless there is a clear indication as to what the particular propensity is, and the Tribunal did not identify one.
[44] I dismiss the challenge to the Tribunal’s admissibility ruling. Mr Geary’s motive – I prefer to call it purpose – in making the disclosures to the Police and to Y was a live issue. The previous section of this judgment, dealing with privilege, demonstrates that. The Tribunal squarely rejected Mr Beck’s submission, reiterated to me, that “the issue with the ACC was an entirely separate one”. It was not, because Mr Geary’s allegation that X had made a fraudulent claim on ACC featured also in his letters to the Police and his disclosures to Y. The timing of the disclosures to the ACC was particularly telling, because the second one, made in October 2007, was well after Mr Geary’s appeal had been heard (on 23 May) and dismissed by Ronald Young J in his 28 May 2007 judgment. That was a powerful factor in the Tribunal rejecting Mr Geary’s assertion that he had made the disclosures for litigation reasons (to assist his appeal) and concluding that Mr Geary’s primary motivation was to have X investigated and prosecuted for fraud and perjury.
[45] I agree with the Tribunal’s s 8 probative value/unfair prejudice assessment. Mr Beck is not correct in submitting that Mr Geary’s October 2007 disclosure to the ACC influenced the Tribunal’s conclusion that the disclosures were over a period of many months. In paragraph 165.1 of its decision, the Tribunal specifically identified the time period as May 2005 to March 2006, which is the period covered by Mr Geary’s disclosures to the Police and to Y.
[46] Although that makes it unnecessary to consider whether the ACC evidence was admissible under s 40 as propensity evidence, my tentative view is that it was. Although not stated by the Tribunal, the propensity demonstrated by the ACC evidence was a propensity to disclose confidential information about X without
lawful justification. It was a further instance of Mr Geary doing the same thing for the same reason.
Professional misconduct
[47] In F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 the Court of Appeal identified a two step test (which I have adjusted to this case) for disciplinary inquiries such as this:
i)Did the proven conduct of Mr Geary fall short of the conduct expected of the reasonably competent psychologist operating in the vocational area?
ii)If so, were the circumstances of the breach sufficiently significant to justify the imposition of a sanction?
[48] The Tribunal drew together its decision on step 1 in this way:
163.The Tribunal is satisfied that the conduct under review amounts to being both very serious negligence, and malpractice. It was not justified given the significant professional and ethical obligations which Mr Geary had.
Should I uphold the Tribunal’s decision that Mr Geary had made unjustified disclosures, Mr Beck accepted the issue on this part of the appeal narrowed to step 2.
[49] I have upheld the Tribunal’s view that Mr Geary’s disclosures were neither necessary nor lawfully justified. But, before moving to step 2, I emphasise that I reject any submission – I do not think Mr Beck really made one – that the propriety of Mr Geary’s disclosures was to be judged subjectively. In other words, if Mr Geary somehow thought his disclosures were justified, then they could not be viewed as improper or unprofessional. That would deprive the Health Information Privacy Code 1994 of its purpose and force. Similarly, the Code of Ethics for Psychologists Working in New Zealand, 2002. Reference in Rule 11 of the Privacy Code to “reasonable grounds” points to an objective standard. So does the way in
which the Code of Ethics is framed. It is sufficient to refer to these two provisions in
the section dealing with privacy and confidentiality:
1.6 Privacy and Confidentiality: Psychologists recognise and promote persons’ and peoples’ rights to privacy. They also recognise that there is a duty to disclose to appropriate people real threats to the safety of individuals and the public.
1.6.1. Psychologists make themselves aware of relevant Acts and Standards and follow procedures that
provide for informed consent, confidentiality, fair treatment
and due process as laid out in
those Acts and Standards.
[50] The Tribunal dealt with step 2 of the test in these two paragraphs of its decision:
165.The Tribunal has considered the following factors as being relevant to threshold:
165.1The established conduct referred to in the charge was over a period of many months (May 2005 to March 2006).
165.2 (X) felt very threatened and upset by the breach, quite justifiably.
165.3Even lay people questioned and felt discomfort about the breaches.
165.4 Immoderate and abusive language was used.
165.5The practitioner continued to demonstrate a complete lack of insight – even when the Board itself had alluded to the issue of insight in its decision in the context of confidentiality.
165.6He disregarded the professional opinion he obtained from the Police, and became angry about it.
165.7 Overall there was a flagrant disregard for the rights of confidentiality.
165.8Confidentiality is at the heart of the profession of psychology, and why clients feel able to place their trust in their psychologist.
165.9Mr Geary deliberately put his own interests ahead of those of his client.
165.10These issues clearly have implications for members of the public, both those who might consult Mr Geary, and generally.
165.11The conduct cannot be explained as simply being the misguided initiatives of someone not well informed as to legal processes. Mr Geary ignored a fundamental tenet of his profession, and did so knowingly (because third parties raised the question of the propriety of what he was doing with him).
166Having regard to these factors the Tribunal regards the established conduct as very serious indeed, and concludes that it warrants discipline.
(Appeal Bundle 1/63)
[51] In his submissions, Mr Beck subjected each of these 11 factors, in turn, to critical scrutiny. His aim was to try and demonstrate that, even in combination, they did not add to misconduct justifying disciplinary sanction. He made two general points. First, the disclosures were limited, both in terms of what was disclosed and in terms of to whom it was disclosed. For example, Mr Geary did not disclose his counselling notes, and did not hand over all the material in his possession. His disclosures were only to the Police and to Y (Mr Beck did not include the ACC, because Mr Geary was not charged with his disclosures to the ACC).
[52] Secondly, Mr Beck suggested that it was difficult to escape the conclusion that X’s complaints were the product of a professional relationship that had deteriorated. Her initial complaint, leading to the disciplinary proceeding before the Board, then degenerated into the further complaint dealt with by the Tribunal. Rather than attempting to defuse the situation, the Committee escalated it by again charging Mr Geary. Mr Beck submitted:
There is, however, no evidence of general conduct that is in truth a matter of substantial professional concern.
[53] I consider that each of the 11 factors listed by the Tribunal was present and that, when aggregated, they provide a solid foundation for the Tribunal’s conclusion in its paragraph 166.
[54] Rather than labouring through each of the 11 factors, and the points made for and against each by counsel, I pick two at random. First:
165.2 (X) felt very threatened and upset by the breach.
Mr Beck accepted this, but contended there was no basis for X’s fear, objectively viewed. He referred to part of a Police report dated 4 May 2006:
...
SUMMARY OF THE FILE
•Complaint received from (X) that her ex psychologist GEARY had contacted her ex husband (Y) and shown him documentation relating to (X’s) treatment, containing negative statements made by her directed at (Y) during sessions.
•The documentation was given to GEARY by (X) while she was still his patient.
•GEARY did not have permission from (X) to show the documentation to (Y).
•(X) further states that GEARY through their counselling session knows (Y) is a dangerous person and has showed the documentation to him to incite violence between (Y) and (X).
Police enquiries so far prove:
• GEARY did show (Y) the documentation.
•The documentation is of a very personal nature and does contain accusations of a serious nature sexual and violence directed at (Y). (documents recovered by police)
• That (Y) has not reacted in a violent manner towards (X) as a result.
...
CONCLUSION SO FAR
GEARY is showing patient counselling notes without permission from the patient (X).
This matter appears to be a matter for the authority charged with monitoring psychologists or with the Privacy Commissioner.
(X) has already lodged a complaint with the Privacy Commissioner and they are awaiting a statement from (Y).
GEARY has not incited violence from (Y) according to (Y’s) statement.
...
(Appeal Bundle 4/228-229)
[55] This report supports the Tribunal’s finding that X felt very threatened by the disclosures Mr Geary had made to Y. The report certainly states that Y had not
reacted with violence toward X. It does not state that the Police saw no risk of that occurring. In submitting that the Police dismissed any objective threat, Mr Beck overstates the position.
[56] My second random example is:
165.5 The practitioner continued to demonstrate a complete lack of insight
– even when the Board itself had alluded to the issue of insight in its decision in the context of confidentiality.
Mr Beck submitted this was incorrect. No lack of insight had been demonstrated by
Mr Geary, who was pursuing the specific goal of preparation for his appeal.
[57] The Tribunal’s reference to comments by the Board is to the 22 June 2005 decision of the Psychologists Board dealing with penalty, publication and costs in relation to earlier wrongful disclosure charges. This is what the Board said, and I add some emphasis:
The Board has considered various aggravating and mitigating factors in coming to its determinations. Despite recent disciplinary sanctions, Mr Geary continues to demonstrate a lack of insight and remorse. His serious negligence and misconduct is an established pattern rather than a single mistake, and is compounded by the vulnerability of the client involved and the harm caused to her and to our profession as a whole. Rather than acknowledge his misconduct, Mr Geary, during the hearing, minimised behaviour that the Board considers indefensible. In the Board’s opinion, the probability of successful rehabilitation is low. It was noted, however, that the complainant did state that Mr Geary was a good advocate “at times”.
[58] Although it is a subsequent statement, not made in relation to the issue whether Mr Geary’s disclosures warranted disciplinary sanction, I set out these comments which the Tribunal made in its penalty decision of 21 December 2009 (again, the emphasis is mine):
26.The Tribunal found that the relevant conduct was “very serious negligence and malpractice” and that the established conduct was “very serious indeed ...”. The failure on the part of Mr Geary to recognise the seriousness of the breaches which occurred was evident at the hearing, and is evident again in the penalty submissions on his behalf. These failures inevitably raise a serious concern as to lack of insight by Mr Geary as to appropriate conduct by him as a registered psychologist.
(Appeal Bundle 1/79)
[59] Having read through most of the transcript of Mr Geary’s evidence before the Tribunal, I consider the Tribunal’s observations in that paragraph to be well founded. Through Mr Beck, Mr Geary rejects lack of insight. It really is a situation where I can do no better than lapse into the now forbidden Latin, and say res ipsa loquitur.
[60] Between them, counsel referred me to a number of authorities relevant to the answer to step 2 (as set out in [47] above). First in time was the decision of Jeffries J at first instance in Duncan. At pp 520-521 His Honour said this:
The Court now addresses directly what is medical confidence? It is not difficult to grasp the broad concept of professional confidence for it is fundamental to the relationship of a professional man with a lay person. ...
...
The platform support of a description of medical confidence is to identify the doctor/patient relationship as a fiduciary one. Without trust it would not function properly so as to allow freedom for the patient to disclose all manner of confidences and secrets in the practical certainty they would repose with the doctor. There rests with a doctor a strong ethical obligation to observe strict confidentiality by holding inviolate the confidences and secrets he receives in the course of his professional ministering. If he adheres to that ethical principle then the full scope of his ability to administer medical assistance to his patient will develop.
[61] Second was the judgment of Courtney J in Martin v Director of Proceedings HC Auckland, CIV 2006-404-005706, 2 July 2008. The case did not involve a breach of professional confidence, but counsel relied on this exposition of the correct approach for the Tribunal under s 100 of the Act:
[32] This approach does not identify particular forms of conduct that might constitute either professional misconduct or conduct unbecoming but merely poses the question whether the departure from acceptable standards was significant enough to warrant sanction. While the criteria of “significant enough to warrant sanction” connotes a notable departure from acceptable standards, it does not carry any implication as to the degree of seriousness. Given the wide range of conduct that might attract sanction, from relatively low-level misconduct to misconduct of the most reprehensible kind, the threshold should not be regarded as unduly high. It is certainly a threshold to be reached with care, having regard to both the purpose of the HPCAA and the implications for the practitioner, but the measure of seriousness beyond the mere fact that the conduct warrants sanction is a matter to be reflected in penalty. The degree of seriousness does not form part of the Tribunal’s enquiry at the second stage of the two step process.
[33] In summary, when considering a charge under s 100(1) the Tribunal must, first, consider whether the practitioner has departed from the
acceptable standard of conduct of a professional in the circumstances. What that standard is will be determined by reference to the conduct of other competent and responsible practitioners and the Tribunal’s own assessment of what is appropriate conduct, bearing in mind the purpose of the Act. If the Tribunal is satisfied that the practitioner has departed from the standard expected it must then consider whether the departure is significant enough to warrant sanction. This decision does not, however, reflect the degree of the seriousness with which the conduct is to be viewed; that will be reflected in the penalty imposed.
[62] Next was the judgment of Simon France J in Vatsyayann v Professional Conduct Committee HC Wellington, CIV 2009-485-000259, 14 August 2009, where His Honour made these (probably obiter) remarks:
[8] My view of the facts of this case is such that this debate is unlikely to affect the outcome, so I do not consider the cases in further detail. Generally in terms of the approach to be taken, I observe that it is plain that something more than a breach of acceptable standards is required, because otherwise there would be no need for step 2. It is also plain that the breach must be of sufficient significance to merit recording a finding of professional misconduct against the practitioner. It is important to bear in mind that it is a finding that carries stigma, and represents a message about the person’s conduct of their professional responsibilities that will be keenly felt by the person, and noted by his or her peers.
[63] Mr Radich also referred me to three decisions of the Tribunal, as illustrations of situations in which it had – or in one case had not – imposed disciplinary sanctions. In Decision No. 250/Nur09/119P of 15 September 2009, the Tribunal sanctioned, by suspending her for three months, a nurse who had accessed a patient’s medical records over a four month period, and disclosed them to the patient’s former husband. During the period of the disclosures the nurse was in a relationship with the former husband.
[64] In Decision No. 275/Psy08/108P of 24 December 2009, the Tribunal found a psychologist guilty of professional misconduct. He had contacted a client’s girlfriend, behaved in a sexually suggestive way toward her, and discussed with her a range of personal matters about the client without his consent. I was not given the Tribunal’s penalty decision.
[65] Lastly, in Decision No. 181/01/78C of 10 December 2001, the Tribunal dealt with a doctor who had relayed, to his wife only, the nature of a complaint that had
been made against him, and the name of the complainant. The Tribunal came to this conclusion:
86.There was no other evidence as to any disclosure of the complainant’s personal details by the respondent to any person other than his wife and the clinic staff. Therefore, the Tribunal is satisfied that the respondent’s disclosures were limited and they did not cause the complainant any particular prejudice or harm. On that basis, while the Particular is established in a very narrow way, the Tribunal has determined that it does not warrant the sanction of an adverse finding in relation to this aspect of the charge.
Mr Radich informed me that that was the only decision the Committee knew of where an unauthorised disclosure of confidential information had not warranted disciplinary sanction.
[66] I am not in doubt that the Tribunal was well justified in holding that Mr Geary’s disclosures to the Police and to Y between May 2005 and March 2006 were professional misconduct amounting to serious negligence and malpractice warranting disciplinary sanction.
Penalty
[67] The Tribunal cancelled Mr Geary’s registration as a psychologist, censured him and ordered him to pay costs of $30,000 (approximately 17% of the actual costs of the Committee and Tribunal totalling $175,000). This lower than the normal 30% costs contribution reflected Mr Geary’s poor financial situation.
[68] Mr Beck submitted that cancellation of registration was a completely disproportionate response to the charges found proved, the appropriate sanctions being censure, and possibly a fine.
[69] Mr Beck did not contend that the Tribunal lacked a sound grasp of penalty principles. Rather, as just mentioned, his submission was that cancelling Mr Geary’s registration was an inappropriate penalty response. These, I think, were the main points Mr Beck made:
a) The Tribunal did not have an accurate view of the three disclosures it had found proved. They were by no means the worst that could be imagined. For example, they were not made to the media or the public, and they did not include disclosure of counselling notes.
b)The disclosures were to the Police (and Mr Geary believed that disclosure to the Police was justified) and to Y (who was anyway familiar with much of the material disclosed).
c) X’s safety was not in fact threatened.
d) Mr Geary had not previously been found guilty of similar conduct.
The disciplinary hearing against him in 2005 did not proceed on the basis of disclosure of confidential information, and no such finding had been made against him.
e) The Tribunal did not balance the aggravating and mitigating factors of
Mr Geary’s offending.
f) In MacDonald v PCC HC Auckland, CIV 2009-404-001516, 10 July
2009, Lang J at [95] referred to a schedule of penalties imposed by the
Tribunal in other cases involving health practitioners. He noted:
... it is apparent from the schedule that those practitioners who have been suspended for nine months or more have generally been found guilty of criminal wrong doing including, in particular, offences involving fraud and dishonesty.
[70] I have already touched on most of these points, but comment on the last two is required. As to e), while I accept that the Tribunal’s penalty decision may not contain an express listing and balancing of aggravating and mitigating factors, all that were of consequence are mentioned, and I am satisfied that the required weighing up occurred. If the decision is deficient in mentioning what Mr Geary considers were mitigating factors, then that is doubtless because the Tribunal did not share his view. An example is Mr Beck’s point c), which was a fortunate outcome rather than one intended by Mr Geary.
[71] As to f), the Tribunal did refer to MacDonald, and in particular to Lang J’s observations in [95]. It said they were:
34.... of no assistance here given the very different circumstances and history which the Tribunal was required to consider in this case.
(Appeal Bundle 1/81)
[72] Ms Van Dam, who responded to this point of the appeal, was able to provide me with the schedule which had been provided to Lang J in MacDonald. She was able to tell me that the Tribunal had cancelled the registration of a psychologist in four cases. In three of them the psychologist had entered into a relationship with the patient. Comment on the psychologist’s lack of insight featured in each of those cases. The cases in which the Tribunal considered that protection of the public did not require the cancellation of the psychologist’s registration involved inappropriate treatment methods, practising without a current certificate and the like.
[73] I consider two authorities are particularly helpful in dealing with this aspect of the appeal. The first is Randerson J’s judgment in Patel v The Dentists Disciplinary Tribunal HC Auckland AP77/02, 8 October 2002. Dealing with a dentist’s appeal against the removal of his name from the Dental Register, Randerson J said this:
[30] The consequences of removal from a professional register are ordinarily severe and the task of the Tribunal is to balance the nature and gravity of the offences and their bearing on the dentist’s fitness to practice against the need for removal and its consequences to the individual: Dad v General Dental Council [2002] 1 WLR 1538 (PC) at 1543. As the Privy Council further observed:
Such consequences can properly be regarded as inevitable where the nature or gravity of the offence indicates that a dentist is unfit to practise, that rehabilitation is unlikely and that he must be suspended or have his name erased from the register. In cases of that kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of the penalty to the individual.
[31] I respectfully adopt the observations of the Privy Council and would add that it is incumbent on the Tribunal to consider carefully the alternatives available to it short or removal and to explain why the lesser options have not been adopted in the circumstances of the case. As well, while absolute consistency is something of a pipe dream, and cases are necessarily fact dependent, some regard must be had to maintaining reasonable consistency
with other cases. That is necessary to maintain the credibility of the
Tribunal as well as the confidence of the profession and the public at large.
The Tribunal cited those two paragraphs in paragraph 15 of its penalty decision
(Appeal Bundle 1/74).
[74] The second decision is that of Gendall J in Professional Conduct Committee v Martin HC Wellington, CIV 2006-485-001461, 27 February 2007. That was an appeal by the Committee, which alleged the Tribunal had erred in failing to order that Ms Martin’s registration as a nurse be cancelled, following her conviction for attempting to murder her terminally ill mother. These are the two parts of the judgment I find particularly helpful:
[26] The appropriate starting point seems to me to ask: “What orders will protect the public, through advancing the proper responsible standards and practice of nursing?” rather than to ask: “Should the professional be punished again?”
...
[32] ... Where there is a deliberate breach of trust, and a practitioner adopts the stance that no wrong has been done and that he or she would act in the same way again should the situation arise, the crucial element of trust in the practitioner is eroded. It may jeopardise the crucial relationship between health professionals.
[75] The Tribunal’s conclusion about cancellation of registration is in this paragraph in its penalty decision:
35.In the Tribunal’s view, the only proper penalty outcome which will adequately protect the public is cancellation of registration. The conduct under review is so serious that there is no other reasonable alternative. It means that if Mr Geary wishes to resume practice as a psychologist (which he has the option of considering), he will need to apply for re-registration to the Psychologists Board and will need to satisfy the Board that he is a fit and proper person to be re- registered. All the checks and balances of that process would then apply.
(Appeal Bundle 1/81)
[76] In my view none of the points made by Mr Beck impugns the correctness of that view, which I consider was correct. At the risk of repetition – because some of these points are mentioned earlier in this judgment – I list the features that I consider required the Tribunal to cancel Mr Geary’s registration. There are three of them.
First, this was the third time Mr Geary had been before the Disciplinary Tribunal in the last eight years. In 2002 he was suspended for six months. In 2005 he was censured and fined. One of the charges in respect of which the 2005 penalties were imposed was one alleging unprofessional disclosures by Mr Geary to X “of details of rapes and sexual abuse known to him through his professional relationships including abuse visited on children”. In short, this was repeat offending.
[77] Secondly, and following from the point just made, Mr Geary showed no insight into his offending, and thus no remorse for it. The Board had commented on that in 2005 and the Tribunal commented on it again in paragraph 26 of its penalty decision, which I have cited in [58]. Directly relevant to that is the comment of Gendall J at [32] in Martin, which I have cited in [74]. I share the Tribunal’s view that it was significant that even lay people such as Y questioned the appropriateness of Mr Geary’s disclosures, yet Mr Geary saw nothing wrong with what he was doing.
[78] Thirdly, there is the nature of the disclosures and Mr Geary’s persistence with them. The worst was undoubtedly his disclosures to Y which can only be viewed as reckless and utterly inappropriate, given Mr Geary’s knowledge of the hostility between Y and X. It understates the position to say that it was well beyond the professional pale for Mr Geary to categorise X as a witch, in one of his follow up emails to Y.
Name suppression
[79] The interim order suppressing Mr Geary’s name comes to an end with the delivery of this judgment. Mr Geary does not seek a final suppression order and I make none.
Costs
[80] As requested by counsel for both parties, I reserve costs. Counsel have leave to apply if an order is sought.
Solicitors:
Gault Mitchell, Wellington for Appellant
Minter Ellison Rudd Watts, Wellington for Respondent
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