JD v A Professional Conduct Committee
[2022] NZHC 826
•27 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1809
[2022] NZHC 826
IN THE MATTER of an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003 BETWEEN
JD
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 13 April 2022 (via VMR) Counsel:
A H Waalkens QC and S A Beattie for Appellant
D R La Hood and E M Bransgrove for Respondent
Judgment:
27 April 2022
JUDGMENT OF BREWER J
This judgment was delivered by me on 27 April 2022 at 12.30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Wotton + Kearney (Wellington) for Appellant
Luke Cunningham & Clere (Wellington) for Respondent
JD v A PROFESSIONAL CONDUCT COMMITTEE [2022] NZHC 826 [27 April 2022]
Introduction
[1] JD is a psychiatrist. He has filed an appeal against the Health Practitioners Disciplinary Tribunal (the Tribunal) finding that he entered into a sexual relationship with a patient.1
[2]This judgment determines two preliminary applications by JD:
(a)To call evidence at the appeal.
(b)For an order requiring non-parties to produce the complainant’s medical records.
Background
[3] JD treated the complainant for a major depressive disorder between August 2011 and May 2013. He saw her as a patient on 13 occasions. The complainant’s evidence was that the two commenced a sexual relationship during this period which continued until September 2018.
[4] JD gave evidence that there was never a sexual relationship and that he did not see the complainant again after she was discharged as his patient in May 2013.
[5] JD represented himself before the Tribunal. Ms Matheson, a lawyer, was assigned by the Tribunal to cross-examine the complainant on behalf of JD. At the end of the cross-examination the Tribunal appointed Ms Matheson as standby counsel to assist JD for the rest of the hearing.
Application to call evidence
[6] JD’s case on appeal is that he did not have a fair hearing. A component of that relates to his inability as a self-represented litigant to defend himself properly. He is
1 This finding led to the Tribunal’s conclusion that JD’s conduct was a serious departure from expected professional and ethical standards and brought, and is likely to bring, discredit to the medical profession as per s 100(1)(b) of the Health Practitioners Competence Assurance Act 2003. The Tribunal cancelled JD’s registration for a period of two years and eight months, imposed conditions upon any application for re-registration, and censured him.
critical of Ms Matheson’s efforts on his behalf. He has filed affidavits in support of his application for leave to give further evidence. They contain the evidence he wishes to put before the Court at the appeal hearing.
[7] I do not need to go into further detail. The respondent accepts that JD must be permitted to give evidence in support of his submission that he did not get a fair hearing. I have the same view. This is not new evidence. It goes to process, not to the substance of the issues before the Tribunal. Its purpose is to support a submission that the process was unfair.
[8] Mr La Hood for the respondent reserves for argument at the appeal hearing whether JD should be permitted to give expert evidence on various mental health matters including as described in literature annexed to his affidavit of 30 November 2021. It might be that this goes to weight rather than admissibility. That will be for the presiding judge to determine.
[9] I will grant the application. JD may give evidence at the appeal hearing in accordance with his affidavits, subject to the reservation I have mentioned.
[10] Similarly, the respondent may call Ms Matheson to give evidence at the appeal hearing in accordance with her affidavits.
Application for non-party disclosure
[11] Part of JD’s case that he did not have a fair hearing is that there was a potential defence which was not adequately pursued by Ms Matheson and was not put before the Tribunal. There is, apparently, a recognised phenomenon of stalking of psychiatrists by patients. A stalker can become intensely infatuated with their psychiatrist and this can turn to negative emotion and lead to vexatious complaints to professional registration boards (no doubt this is an over-simplification).
[12] JD denies any sexual relationship with the complainant, and says he did not see her after his last therapeutic session with her in 2013. He wants to explore whether the complainant has the stalker disorder. Mr Waalkens QC submits there is an evidential basis for this. A psychologist, Dr Ratcliffe, wrote a report on the
complainant to JD on 20 July 2012 in which she reported the complainant’s perception that her life had “become very narrow”. There is evidence that the complainant did become infatuated with JD and sent him many text messages and some inappropriate images of herself. Accordingly, the potential existence of any mental health condition going to the complainant being a stalker is relevant to the appeal.
[13]JD seeks an order as follows:
(a)That the following non-parties to this proceeding make discovery of medical records of [the complainant] for the period August 2011 to September 2018, to be produced to the applicant by his counsel on such terms as this Court may order:
(i)Dr Amanda Renfree, psychiatrist of Bexley Clinic, 9 Greenlane East, Remuera, Auckland;
(ii)Beachlands Medical Centre, a GP medical practice of 129A Beachlands Road, Beachlands, Auckland; and
(iii)Gail Ratcliffe of Gail Ratcliffe Psychological Services Limited, of Ponsonby, Auckland.
[14] The non-parties have been served with copies of JD’s application for discovery but have taken no steps.
[15] There is nothing in the Health Practitioners Competence Assurance Act 2003, or in the High Court Rules 2016, which gives me jurisdiction to order non-party discovery on this appeal.
[16] Mr Waalkens submits I have an inherent jurisdiction to do so. He cites Clark J who commented:2
[28] The operative principle is that discovery on appeal is rare and unless the statute under which the appeal is brought envisages discovery (expressly or by necessary implication) it will be ordered only in exceptional circumstances.
[17] I respectfully agree with Clark J’s view. Rule 20.16 provides that further evidence may be adduced on appeal with the leave of the court if there are special reasons for hearing the evidence. It would be strange if, where special reasons exist,
2 Brand v Registrar of Companies [2016] NZHC 2983.
there is no power to order discovery by a non-party of identified documents relevant to the evidence.
[18] I say “identified documents” because r 20.16 implies that the evidence sought to be adduced, and for which special reasons are advanced as to why leave should be granted, must be identified.
[19]Mr Waalkens’s submissions on why there should be orders for discovery are:
83.Dr Renfree is a psychiatrist. There had been three consultations by Dr Renfree with the patient – November 2015, April 2016, and December 2017. The need for her records was apparent in the lead-up to the disciplinary hearing. Again, the lateness of the preparation for the hearing has fundamentally prejudiced the ability to obtain all relevant records.
84.Standby counsel did that same day (Sunday, 18 April 2021) ask counsel for the respondent for these records. The request for access to these records was made at 5:47pm that day. Unsurprisingly (at such a late stage) counsel confirmed that he had no notes for Dr Renfree. The matter was seemingly not otherwise followed up.
85.Whilst it was possible for the appellant to have pursued this, he being so out of his depth, did not do so. These records ought now be produced.
86.Obtaining a clear psychiatric profile of the patient, in a case like this, is vital.
Beachlands Medical Centre GP notes
87.Dr Poole, on the second day of the hearing, produced large volumes of medical records not previously disclosed. There was little time for standby counsel/the appellant to review the same.
88.The lack of attention to the importance of paying attention to the detail in the medical records, is apparent from paragraph 31 of Ms Matheson’s affidavit in reply to the application for leave to give further evidence. In that paragraph she accepts that she at no time inspected the redacted notes of the patient’s GP, even though this was offered to her/the appellant at the hearing. That the appellant himself may have intimated he saw no need for Ms Matheson to do so, is consistent with him being out of his depth.
89.The appellant’s affidavit at paragraph 17 refers to the correspondence in this regard. It is clear that the complete GP records for the patient have still not been accessed and they ought be received and considered.
90.As noted at paragraph 20 of the appellant’s affidavit, and above, those records should be initially inspected by the appellant’s counsel on the basis that counsel will not disclose them or the details therein, other than either with the prior agreement from the respondent or by order of the Court.
Gail Ratcliffe – Psychologist
91.As with the psychiatrist, Dr Renfree, it is essential that the entirety of Ms Ratcliffe’s notes be received and considered. Those records also can be dealt with on the basis of the undertaking from the appellant’s counsel.
[20] These submissions amount to an argument that there was inadequate pre- hearing discovery.
[21] At the hearing, Dr Poole produced from her notes various letters from clinicians concerning the complainant’s neurological condition. One, dated 2 May 2018, referred to the complainant being referred recently to Dr Renfree for an assessment for depression.
[22] JD had suggested that the complainant had “erotomania”, a condition characterised by a person’s false belief that someone is deeply or obsessively in love with them. The complainant’s GP, Dr Poole, was asked:
Q.Okay. I think you know that there has been some suggestion that she may be suffering from psychotic type issues around the allegations of this case, delusional issues. In your experience of [the complainant] over the last six years, have you seen any evidence of that?
A. No.
[23] In this case, there is no evidence that any of the non-parties hold documents that might be probative of the complainant being a stalker. The only evidence relating to the complainant’s mental health concerned her depression.
[24] I do not consider that there exist exceptional circumstances which should lead me to grant the application for non-party discovery. There is no evidence identified to which r 20.16 might apply.
[25] In my view, the issues raised by Mr Waalkens should properly be advanced in the appeal in support of JD’s case that he had an unfair hearing.
Decision
[26]The application to call evidence at the appeal is granted.
[27] The application for an order requiring non-parties to produce the complainant’s medical records is declined.
[28]Costs are reserved.
Brewer J
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