L v A Professional Conduct Committee
[2023] NZHC 1151
•12 May 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-367
[2023] NZHC 1151
UNDER the Health Practitioners Competence Assurance Act 2003 BETWEEN
L
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 15 November 2022, further material provided 30 November 2022 Counsel:
A H Waalkens KC and R Scott for Appellant
J C Hughson and S N Nightingale for Respondent
Judgment:
12 May 2023
JUDGMENT OF ISAC J
[Appeal against revocation of interim suppression order]
Introduction and the issues
[1] This case concerns suppression orders made in three related sets of professional disciplinary proceedings. At issue is the relationship between orders in one proceeding suppressing certain facts against the backdrop of publicly available decisions disclosing some of the same facts.
[2] In 2016, the Health Practitioners Disciplinary Tribunal found Mr L, a registered nurse, guilty of five charges of professional misconduct. He did not seek name suppression and he is identified by name in the Tribunal’s decision in connection with the misconduct charges.
L v A PROFESSIONAL CONDUCT COMMITTEE [2023] NZHC 1151 [12 May 2023]
[3] In a second misconduct proceeding, a preliminary issue concerning the admissibility of evidence was determined in judgments of the High Court and Court of Appeal. The Tribunal subsequently stayed the proceedings and, by consent, made permanent non-publication orders suppressing the name and particulars of Mr L and the witnesses.
[4] This appeal concerns a third disciplinary proceeding. The Tribunal found Mr L guilty of two further charges of professional misconduct. The charges were that he fraudulently made out a compensation claim in another person’s name for services Mr L had provided in breach of a professional obligation, and then attempted to interfere with the subsequent misconduct investigation once the subterfuge was discovered. While Mr L’s name was suppressed during the disciplinary process, the Tribunal subsequently revoked name suppression on an application by the Professional Conduct Committee.1
[5] Mr L now appeals against the Tribunal’s decision on suppression.2 First, he argues that publication of his name in the present proceeding will—contrary to the suppression order—likely lead to his identification in the stayed proceedings due to the “extensive common facts and linguistic similarities” between them. Second, Mr L argues that the Tribunal erred when undertaking the balancing exercise by overstating the public interest in awareness of his misconduct, mischaracterising his private interest in non-publication, and failing to properly consider the interests of others who might be affected by publication.
[6] The primary relief sought is a permanent suppression order. Alternatively, Mr L seeks orders that the “common elements” of the Tribunal’s decision in the present case be redacted to prevent his identification in the stayed proceeding.
[7] The Committee opposes the appeal. It says the appellant greatly overstates the risk that publication will lead to his identification in relation to the stayed proceeding.
1 Mr L has been granted interim name suppression, and the Tribunal’s decisions have not been released, to preserve Mr L’s position pending determination of this appeal. I am also advised by counsel that Mr L has been involved in a fourth and subsequent disciplinary proceeding relating to a further instance of professional misconduct. I am told that his registration was cancelled as a result, but that penalty is the subject of a separate appeal to this Court which is yet to be heard.
2 Professional Conduct Committee v L HPDT 1239/Nur20/504P [Decision under appeal].
Given that, the Committee contends that Mr L’s interests in non-publication are outweighed by the public’s interest in knowing he has now been found guilty on several occasions of serious professional misconduct.
[8]There are three issues to be resolved:
(a)First, the appropriate approach on an appeal from the exercise of the Tribunal’s power under s 99 of the Act. Is the appeal a challenge to the exercise of a discretion or a rehearing?
(b)Second, did the Tribunal fail to properly consider and assess the risk that publication of Mr L’s name in this proceeding would lead to his identification in the stayed proceeding?
(c)Third, did the Tribunal err in assessing and weighing the relevant interests for and against publication?
[9] Given the permanent suppression order which exists, and the appellant’s argument in this appeal, the appellant’s name is anonymised in this judgment and the particulars of the various proceedings (including citations) have been limited to those essential to my decision.
The decision under appeal
[10] After setting out the background, the Tribunal addressed the legal principles relating to revocation of non-publication orders. It observed that it needed to consider the interests of those for whom name suppression is sought and the public interest.
The public interest factors identified were:3
(a)openness and transparency of disciplinary proceedings;
(b)accountability of the disciplinary process;
3 Citing Nuttall 8Med04/03P.
(c)the public interest in knowing the identity of a health practitioner charged with a disciplinary offence;
(d)the importance of free speech (enshrined in s 14 of the New Zealand Bill of Rights 1990); and
(e)the risk of unfairly impugning other practitioners.
[11] The Tribunal then adopted a two stage approach to its consideration of whether non-publication orders were desirable. First, it considered the decision “in isolation from the stay proceedings”. Putting to one side the other disciplinary charges that had come before the Tribunal (the first and stayed proceedings), it considered Mr L’s case was “weak”.4 Other than the possible undermining of the name suppression in the stay decision, it considered Mr L’s sole ground for non-publication to be “the risk of harm to his reputation”.
[12] The Tribunal considered that there is a general public interest in maintaining transparency in disciplinary proceedings, accountability of the disciplinary process, upholding the importance of free speech and knowing the identity of a health practitioner that comes before the Tribunal. It also identified the important protective function that courts have in upholding the principal purpose of the Act, which is to “protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their profession”.5 The Tribunal also noted the importance of upholding public confidence in health practitioners.6 The Tribunal considered that “[t]he delivery of effective nursing services relies to a significant degree on public confidence in the profession”, a trust which could potentially be eroded by the suppression of the name of a nurse who has been found guilty of professional misconduct.7
[13]The Tribunal then said:
4 Decision under appeal, above n 2, at [31].
5 Health Practitioners Competence Assurance Act 2003, s 3(1). The Tribunal also cited Ziderman v General Dental Council [1976] 1 WLR 330 at p 333 (PC); and Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, [2008] NZSC 55 at [128].
6 Decision under appeal, above n 2, at [32].
7 At [33]–[34].
[35] … Nurse [L’s] reputation may be damaged by his choice to engage in what we described as a “staged deception” and his “threatening and manipulative behaviour”. That is a consequence of his actions. If that were to be a ground for name suppression, then non-publication of name would be automatic regardless of the outcome of the hearing of any disciplinary charge.
[36] In the absence of any particular personal interests advanced by the practitioner, having weighed the public interests against any general personal interests the practitioner may have, the Tribunal is not satisfied that it is desirable to prohibit publication of the practitioner’s name.
[14] The Tribunal then turned to consider the case “in the context of the stay proceedings”. It accepted that it would be possible for a person to undertake a comparison of the four publicly available decisions,8 as Mr L’s counsel had done, and speculate that the practitioner in the proceedings is the same person.9 Indeed, it considered that the same connection could be drawn previously by scrutinising the Tribunal’s 2016 decision against the High Court’s decision in the stay proceeding.10 Crucially, however, The Tribunal observed:
There is no reason that a person who did not know or suspect that the practitioner in the stay proceedings was in fact Mr [L] would undertake that comparison. If, in fact, a person undertook that exercise and reached that conclusion, that reader’s conclusion does not equate to our publication of Mr [L’s] name in the stay proceedings. Non-publication orders cannot prevent speculation about the identity of parties. They can prevent publication of that speculation.
[15] The Tribunal considered that the possibility of such speculation “is not a sufficient factor to outweigh the public interest in publication of the Tribunal’s finding of professional misconduct of a practitioner who has already had a charge upheld against him”.11 Even if there was a real risk of the suppression orders in the stayed proceeding being undermined, the risk was outweighed by the public interest in:12
(a)openness and transparency of disciplinary proceedings;
8 The 2016 decision, the High Court’s decision in the stay proceeding, the stay decision, and the decision in the present proceeding.
9 At [40].
10 At [39].
11 At [41].
12 At [42].
(b)knowing the name of a nurse who has been suspended for fraudulent and dishonest conduct, and attempting to interfere with the Nursing Council’s subsequent investigation; and
(c)the ability of patients, clients, employers and other stakeholders to make an informed choice about the services they use.
[16] The Tribunal was reassured in its decision by advice from counsel that Mr L’s former partner acknowledged and accepted the risk that “publication of Mr [L’s] name may lead to identification of him by people who knew them together”.13
[17] Accordingly, the Tribunal granted the application to revoke name suppression for Mr L.
Mr L’s appeal
[18] Mr Waalkens KC, for Mr L, focussed his submissions at the hearing around two main criticisms of the Tribunal’s decision.
[19] The first criticism is that the Tribunal failed to have proper regard to the principle of comity14 and the well-established need to preserve the integrity of the permanent non-publication order.15 The essence of the argument is that publication of Mr L’s name in the present proceeding would—due to the extensive common elements in the various decisions—create a real risk of his identification in the stayed proceeding, thus undermining the permanent non-publication order therein. That would have serious consequences for him, given the serious nature of the charges that were stayed.
13 At [43].
14 Mr Waalkens points to the High Court’s decision in Fujifilm Business Innovation New Zealand Ltd v Whittaker [2022] NZHC 1775 at [4] where Jagose J explained how the principle of comity requires courts to respect non-publication orders made by professional bodies charged with making those decisions.
15 Mr Waalkens raised a number of cases in which health practitioners have been granted name suppression on the basis that identification would undermine other suppression orders, whether relating to the practitioner or another person: X v Director of Proceedings [2014] NZHC 1798; Y v Director of Proceedings [2016] NZHC 2054; Professional Conduct Committee v J Med19/443, 15 August 2019; Professional Conduct Committee v A MLT16/370P, 17 February 2017; and A v Professional Conduct Committee [2018] NZHC 2158.
[20] In support of this argument, Mr Waalkens produced a table entitled “Examples of commonalities between the Tribunal’s decisions and the Stay Proceedings”. The table compares excerpts that contain common facts and information across five decisions. For example, the decisions refer (often in similar terms) to Mr L’s background, the date or time period in which he became a registered nurse, and the health sectors in which he worked. All of the decisions refer to details of the charges in the first decision, including references to the patient in that case, the patient’s circumstances and relationship with Mr L, the nature of Mr L’s misconduct and the penalties imposed on him by the Tribunal. Mr Waalkens also drew attention to the inconsistent manner in which particulars were suppressed across the various decisions in the stayed proceedings.
[21] Mr Waalkens says that the Tribunal failed to really grapple with these commonalities and consider the risk that they would lead to the identification of Mr L (or witnesses) in the stayed proceedings, thereby undermining the suppression order, and infringing the principle of comity. He was critical of the Tribunal’s conclusion that a person reading the decisions might be able to speculate that Mr L was the practitioner in question, but that this did not somehow amount to the Tribunal effectively identifying him as the subject of the stayed proceeding.
[22] The second criticism is that the Tribunal erred in assessing and weighing the respective interests in publication of Mr L’s name. Mr Waalkens identifies three failures.
[23] First, Mr Waalkens contends that the Tribunal attached undue weight to the public interest in publication. He points to the factors which the Tribunal considered outweighed the risk of identification: openness and transparency in disciplinary proceedings; knowing the name of a nurse who has been found guilty of serious misconduct charges; and the ability of people to make informed choices about the services they use. Mr Waalkens says these factors arise in every case against a practitioner where misconduct is made out (including those where non-publication orders are made) and the Tribunal failed to provide any explanation or analysis of why these factors apply in the present situation.
[24] He also submits that it is clear the Tribunal placed weight on the nature of Mr L’s misconduct in deciding to publish his name and, in doing so, wrongly conflated the revocation of non-publication orders under ss 95 and 99 with the imposition of penalties under s 101.16 The Tribunal had already imposed the penalties for Mr L’s misconduct under s 101 and the use of revocation as a punishment was a misapplication of the Act.
[25] Further, at the hearing, Mr Waalkens advised the Court that Mr L is willing to provide a signed undertaking that he will not practice as a nurse in the future. Given that the principle purpose of the Act is to protect the health and safety of members of the public by ensuring that health practitioners are competent and fit to practise,17 the undertaking would meet the protective function of the Act and negate the three public interest factors relied on by the Tribunal to support publication.18 Mr Waalkens points to H v Waikato Standards Committee of the Law Society where name suppression was granted on appeal to a lawyer who had undertaken not to practice. There Hansen J observed:19
Publication of a practitioner’s name responds to the concern that existing and prospective clients of a practitioner facing disciplinary charges should be able to make informed choices about who is to act for them. …
While the practitioner’s misconduct was rightly characterised as serious and, in the usual way, there is an important interest to be served in full disclosure, the public interest in publication was significantly lessened by the absence of any material protective element.
[26] The second error Mr Waalkens alleges in the Tribunal’s balancing exercise was its characterisation of Mr L’s private interest in non-publication as “the risk of harm to his reputation”. However, Mr L never made any submission that publication of his name in the present proceeding would lead to reputational damage. Rather, his concern is that he will be connected to the serious allegations underlying the charges in the
16 Citing ANG v Professional Conduct Committee [2016] NZHC 2949 at [78] where Moore J observed “nowhere is s 95 predicated on the need for the doctor to be held account publicly”.
17 Health Practitioners Competence Assurance Act, s 3(1).
18 Mr Waalkens also submitted in his written submissions that this principal purpose was met by the imposition of conditions on Mr L returning to practise, such as the requirement to disclose the Tribunal’s decision to any employer, and the prohibition on practicing in self-employment or taking a financial interest or management role in the operation of a practice where he works. See for example L v Director of Proceedings HC Auckland CIV-2008-404-2268, 25 March 2009 at [89]–[90].
19 H v Waikato Standards Committee of the Law Society [2013] NZHC 2090 at [25]–[26].
stayed proceeding which, as the High Court itself has acknowledged, could have serious reputational and professional consequences (notwithstanding that the charges were unsupported by admissible evidence). The Tribunal failed to consider and weigh that harm.
[27] Finally, Mr Waalkens says that the Tribunal failed to consider the risk that publication might result in the identification of a patient common to the first, second and third proceedings, the patient’s family, or Mr L’s former partner, or the effect that this might have on them, as it was required to do by s 95(2).
[28] Overall, Mr Waalkens submits that given the limited public interest in knowing the appellant’s name, combined with the significant risk of identification of Mr L as the practitioner at the centre of the stayed proceeding arising from publication in the present case, it is desirable to suppress Mr L’s name once again.
First issue: an appeal from the exercise of a discretion or a rehearing?
[29] The making and revocation of non-publication orders are governed by ss 95 and 99 of the Act.
[30] The starting point is s 95(1), which provides that hearings of the Tribunal are public, unless ordered otherwise. Against that default position, s 95(2) empowers the Tribunal to make a wide range of non-publication orders, including name suppression orders. The threshold for such an order is that the Tribunal is satisfied it is “desirable”. Section 95(2) provides:
(2)If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may (on application by any of the parties or on its own initiative) make any 1 or more of the following orders:
(a)an order that the whole or any part of a hearing must be held in private:
(b)an order prohibiting the publication of any report or account of any part of a hearing, whether held in public or in private:
(c)an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at a hearing:
(d)an order prohibiting the publication of the name, or any particulars of the affairs, of any person.
(emphasis added)
[31] What is “desirable” requires balancing individual interests and the public interest; an exercise that is necessarily fact dependent and flexible.20 The starting point is the principle of openness, which is likely to weigh heavily in the analysis, but is by no means determinative.21
[32] An order made under s 95 continues in force until a time specified in the order, or until it is revoked under s 99.22
[33] Section 99 confers on the Tribunal a discretion to revoke or uphold orders made under s 95“as it thinks fit”:
99Application for revocation of order under section 95 or for making of order under section 98
(1)Any person may apply to the Tribunal for the revocation of an order under section 95 or for the making of an order under section 98(2)(b).
(2)The application may be made by a person who was a party to the proceedings in which the order was made, or any other person.
(3)The Tribunal may grant or refuse the application as it thinks fit.
[34] A curious feature of the statutory scheme is that it does not explicitly contemplate a permanent suppression order. Orders under s 95 relate to the conduct of hearings. They remain in force only so long as they are stipulated to do so and, where no time is specified in the order, until revoked under s 99. In turn, the power to revoke an order may arise before the final determination of the disciplinary charges. In addition, it seems there are no limits on the number of times or by whom or when a revocation application can be made. It follows that, arguably, all “final” suppression orders are subject to revocation at any time.23
20 Y v Attorney-General [2016] NZCA 474 at [32]; Hart v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676 at [18]; and A v Director of Proceedings HC Christchurch CIV-2005-409-2244, 21 February 2006 at [42].
21 Johns v Director of Proceedings [2017] NZHC 2843 at [177]–[178].
22 Health Practitioners Competence Assurance Act, s 95(6).
23 See, for instance, s 208(2) and (3) of the Criminal Procedure Act 2011, which provide that a suppression order that is not subject to a specified term has permanent effect, but may be reviewed by the court “at any time”.
[35] There is a right of appeal to the High Court against decisions under s 99.24 Appeals are conducted by way of rehearing.25 The Court may confirm, reverse, or modify the decision appealed against, or make any decision or order that could have been made by the Tribunal.26
[36] In the present case the parties were at odds on the standard of review that the Court should adopt on appeal.
[37] On the one hand, Mr Waalkens submits that the correct approach is that set out in Austin, Nichols & Co Inc v Stichting Lodestar whereby the appellant bears the burden of showing that the lower court’s decision was wrong, but the appellate court must reach its own view of the merits.27 This approach is consistent with appeals by way of rehearing.
[38] On the other hand, Ms Hughson points to the highly discretionary language of s 99, and contends that the narrower approach for an appeal against the exercise of a discretion outlined in May v May is appropriate.28 That approach requires the appellant to show that the Tribunal erred in law or principle, failed to take into account a relevant matter, or took into account an irrelevant consideration or that the decision was “plainly wrong”. Ms Hughson also points to what she says is competing authority on the correct standard of appeal against decisions under s 95.29
[39] I deal first with the correct approach to appeals against decisions to grant or refuse name suppression under s 95. While Ms Hughson points to a divergence in the authorities on the matter, I consider the question is now settled following the recent
24 Health Practitioners Competence Assurance Act, s 106(2)(e).
25 Section 109(2).
26 Section 109(3).
27 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
28 May v May [1982] 1 NZFLR 165 (CA).
29 F v Medical Practitioners Disciplinary Tribunal [2001] NZHC 1195; T v Director of Proceedings HC Christchurch CIV-2005-409-2244, 21 February 2006; Zimmerman v Director of Proceedings HC Wellington CIV 2006-485-761, 29 May 2007; Director of Proceedings v C HC Wellington CIV-2007-485-810, 24 October 2007; and Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354. See also Y v Director of Proceedings, above n 15, at [42]; N v Professional Conduct Committee of Medical Council of New Zealand [2013] NZHC 3405, [2014] NZAR 350 at [50]; and Rabih v Professional Conduct Committee of the Dental Council [2015] NZHC 1110, [2015] NZAR 1102 at [22].
decision of this Court in Beer v Professional Conduct Committee.30 That was an appeal against a decision of the Tribunal refusing to award a dentist name suppression in relation to findings of professional misconduct. Following close consideration of the relevant statutory provisions and Gwyn J’s judgment in J v New Zealand Institute of Chartered Accountants Appeals Council,31 Edwards J concluded that the appropriate standard for appeals under s 95 was that in Austin, Nichols.
[40] Edwards J began by setting out with approval the Court’s observations in J. In that case, Gwyn J expressed concern about treating suppression and publication issues as discretionary, noting that whether publication is appropriate “requires careful evaluation” and is a “deliberative judgement”.32 That is so even where the statutory considerations informing the decision are relatively “bare bones”, like in the chartered accountancy context where a Tribunal may make a name suppression order “if it is appropriate to do so, having regard to the interests of any person or to the public interest”.33 Accordingly, Gwyn J considered that the Austin, Nichols standard (not that in May v May) was appropriate for appeals relating to name suppression in that context.
[41] In Beer, Edwards J noted the similarities between the statutory schemes governing name suppression for chartered accountants and health practitioners, including the thresholds of “appropriate” and “desirable” and the requirement to have regard to the interests of any person and the public interest. Her Honour concluded that Gwyn J’s observations in J “apply equally” in the health practitioner context, noting that the Act “requires the Tribunal to carefully evaluate the respective interests in deciding whether it is desirable to make the non-publication order”.34 Edwards J also placed weight on the provisions in the Act governing appeals against name suppression decisions:35
The Court seized of an appeal is vested with a wide statutory power to make any decision or order that could have been made by the Tribunal. Both the
30 Beer v Professional Conduct Committee [2020] NZHC 2828. See also XY v Professional Conduct Committee of the Medical Council of New Zealand [2022] NZHC 1498 at [24].
31 J v New Zealand Institute of Chartered Accountants Appeals Council [2020] NZHC 1566.
32 At [71].
33 At [70]. That was the standard under r 13.62 (as it was at the time) of the Rules of the New Zealand Institute of Chartered Accountants.
34 Beer v Professional Conduct Committee, above n 30, at [16].
35 At [17].
statute, and the High Court Rules, stipulate that the appeal is to proceed by way of re-hearing. In light of the Court of Appeal’s decision in Taipeti v R, I consider these provisions suggest that the appeal from the suppression decision should be approached in accordance with the principles set out in Austin, Nichols.
[42] Further, it is clear that her Honour heard argument on “the weight of authority which suggests that name suppression and costs decisions involve the exercise of a discretion”.36 So, in reaching her conclusion, it appears that Edwards J had regard to the competing authority which Ms Hughson now submits remains to be resolved.
[43] While Ms Hughson is correct that appeals against name suppression decisions have historically been treated as appeals against a discretion,37 the decisions in Beer, XY and J suggest that the law has moved on. For my part, I agree with the reasoning and approach to s 95 in those cases, and adopt the same here.
[44] I turn now to consider Ms Hughson’s main argument. The question is whether the position is different for a decision to revoke an existing non-publication under s 99, as was the case here. Ms Hughson points to the different thresholds in the two provisions: whereas the Tribunal may make a non-publication order under s 95(2) where it is “desirable” having regard to the interests of any person and the public interest, s 99 enables the Tribunal on an application by any person to revoke such an order “as it thinks fit”. She submits that the Tribunal’s determination under s 99 is “wholly discretionary”, and therefore attracts the May v May approach on appeal.
[45] The difficulty with this submission is that logically the factors informing the grant of an order under s 95 must also be taken to inform a decision whether to make a suppression order “permanent” by declining to revoke it. As I have found above, the s 95 assessment requires the Tribunal to carefully evaluate and weigh the relevant interests, and is subject to the Austin, Nichols standard upon review.
[46] In addition, it would be odd if ss 95 and 99 were subject to different standards on review. Arguably, the decision under s 99 is the more important given that its effect,
36 At [11]
37 As Gwyn J recognised in J, above n 31, at [71]: “the weight of authorities in this country treat most appeals regarding publication and suppression issues as either exercises of a discretion or consisting of a two-stage test”. See also the cases referred to above at n 29.
unlike s 95, may be permanent. It would therefore be an unusual result if a lower standard applied to the revocation of an existing order than to the grant of the order in the first place. The more consistent and principled approach, in my view, is to apply the same evaluative exercise on appeal whether considering decisions to make, or revoke, non-publication orders.
[47] It follows that I accept Mr Waalkens’ submission that the correct approach for this Court on appeal is that set out by the Supreme Court in Austin, Nichols. I proceed on that basis.
Second issue: will publication of Mr L’s name in this proceeding undermine the suppression order in the stayed proceeding?
[48] As a general rule, the principle of comity requires courts and tribunals to give effect to existing non-publication orders. That is a well-established principle, as the authorities cited by Mr Waalkens show.
[49] The difficulty for Mr L, however, is that I am not satisfied that publication of his name in the present proceeding is likely to undermine the suppression order made in the stayed proceeding. That is because I agree with the Tribunal that while it would be theoretically possible for a person to conduct a forensic comparison of four publicly available decisions to connect the dots, the prospect of that occurring seems vanishingly small.
[50] Given neither of the Tribunal’s decisions in which Mr L is named refer to the stayed proceeding, there is no reason to expect that a person reading those decisions will connect them to the stayed proceedings. As the Tribunal observed, a person would have to be aware of all of the decisions—despite suppression of the practitioner’s identity in the stayed proceeding—in order to undertake the comparative exercise contemplated. In fact, in my view it is only possible to connect Mr L to those proceedings with the benefit of knowing they are already connected.
[51] A further fundamental difficulty with this ground of appeal is that most if not all of the “common facts” relied on by Mr L to argue suppression is required in the present case are already set out in publicly available judgments, including the
Tribunal’s first misconduct decision, in which Mr L is identified, and judgments of the High Court and Court of Appeal. It follows that the connection that Mr L says could be drawn if his name were published in relation to the present proceeding can already be made. So, Mr L is effectively relying on the existing suppression order to obtain more extensive suppression than the order itself provides or that currently exists. I consider that the extent to which Mr L’s argument could be maintained is limited to facts that are common between the third and stayed proceedings, but are not already publicly available.
[52] Put another way, if suppression of certain facts is required in the present case, it would also be required in three other judgments or decisions where no such order exists. In my view, the principal of comity works against Mr L’s appeal. That is because the suppression order in the stayed proceeding cannot predetermine the question of suppression in subsequent misconduct proceedings. But that is essentially the effect of the appellant’s argument.
[53] Finally, I am left with some unease about the appropriateness of Mr L seeking suppression in the current proceeding given the position he adopted in the stayed proceeding. As Ms Hughson pointed out, the Committee in the stayed proceeding sought redaction of the common facts in that decision. It did so precisely to avoid the present situation where naming Mr L might risk identifying him in the stayed proceeding. However, Mr L opposed that application on the basis that the Tribunal was functus officio and its power was limited to publishing the stay decision and upholding the effect of the non-publication orders.38
[54] Having opposed the redaction of common facts in one proceeding, Mr L now seeks to leverage off those same common facts to argue that he should receive permanent name suppression in the present case. Mr Waalkens responsibly acknowledged the unattractiveness of that situation. There is force in Ms Hughson’s argument that if Mr L was truly concerned about being identified in the stayed
38 I note that Mr L was represented by different counsel in the two proceedings, although it is clear from submissions made to the Tribunal at that time that counsel were conscious of the parallel proceedings.
proceeding, he would not have opposed suppression of the common facts recorded in it.
[55] It is unnecessary to say anything more on the point except that, first, I would be reluctant to grant permanent name suppression in these circumstances and, second, given my conclusion above (at [32]–[34]) about the operation of ss 95 and 99 of the Act, I would not be inclined to agree with the Tribunal that it is functus in relation to revocation or modification of its suppression orders in the stay proceeding.
Third issue: did the Tribunal err in assessing and weighing the relevant interests for and against publication?
[56] The essence of Mr L’s argument under this ground is that the public interest in publication of his name in connection with the misconduct is low given that he will no longer work as a nurse, and the Tribunal failed to give sufficient consideration (or any adequate consideration) to the adverse personal effect were he to be connected with the damaging but unproven allegations in the stayed proceeding.
[57] Overall, having considered the parties’ submissions and the evidence, I am not satisfied that the Tribunal erred in the balancing exercise. I have reached this conclusion for several reasons.
[58] First, I consider that there is a significant public interest in the publication of Mr L’s name in connection with the present charges. As Ms Hughson points out, even if he does not return to practice as a nurse, Mr L could seek work in positions involving vulnerable clients or that involve a significant element of trust and integrity. Given the nature of the recent misconduct, involving significant elements of breach of trust, it has relevance beyond Mr L’s work as a practitioner. It follows that the proposed undertaking is not a complete answer to the risk that Mr L may present to future employers or those reposing trust in him. The Tribunal was also entitled to take into account the risk that suppression of Mr L’s name could erode public confidence and trust in nurses and the nursing profession by limiting the accountability and transparency of the disciplinary process.
[59] Second, I do not accept the suggestion that the Tribunal’s references to Mr L’s misconduct in the earlier proceeding indicate that publication was used as a form of punishment. Nothing in the decision supports that conclusion. Rather, as Ms Hughson submits, the misconduct in the first and third disciplinary proceedings are closely linked, and stem from a common background. The earlier charges are an important part of the backdrop to the latter, and enable Mr L’s conduct in the current proceeding to be seen in its full context. Likewise, the first misconduct charges are more serious when considered against the subsequent misconduct established in the present proceeding. It would be undesirable to publish Mr L’s name in relation to only one aspect of his conduct which would otherwise give rise to a fragmentary and inaccurate picture.
[60] Third, I consider limited weight can be put on Mr L’s proposed undertaking that he will not practice as a nurse again. That offer was first relayed to the Court at the hearing of the appeal. The situation is therefore different from H v Waikato Standards Committee of the Law Society. Further, there were other important factors that warranted name suppression in H, including the practitioner’s age, his long and otherwise unblemished career, his impressive record of community service and, most importantly, “the uncontradicted evidence of serious adverse consequences to the health of the practitioner”.39 In addition, it would appear that Mr L has filed an appeal in the fourth disciplinary proceeding against the Tribunal’s decision to cancel his nursing registration. On its face that step is not easily reconciled with the undertaking he proposes to provide.
[61] Fourth, the circumstances have changed since Mr L was granted permanent name suppression in the stayed proceeding by consent. That order was made on the basis that there was “limited interest in identifying the practitioner where the charge has been permanently stayed”, and no public interest in the identities of the other persons involved.40 Since then, however, Mr L has had further charges of professional misconduct proven against him. Mr L’s private interest in maintaining his reputation
39 H v Waikato Standards Committee of the Law Society, above n 19, at [26].
40 The joint memorandum of counsel seeking permanent suppression orders also sought suppression on the basis that publication of the practitioner’s name in connection with the matter, even where the charge had been stayed, would be highly prejudicial to him in his professional and his personal capacity, although this was not reflect in the Tribunal’s Minute ordering suppression.
by avoiding the reputational damage that might flow from his connection to the stayed proceedings must now be viewed against professional misconduct findings in (now) three proceedings. Equally, the public interest in awareness of Mr L’s conduct is greater given the additional and serious misconduct which has been found. As I have noted, that interest is not confined to the prospect of Mr L returning to work in a professional setting, but has wider significance in terms of his suitability to work in roles where his past misconduct may be relevant.
[62] I am also satisfied that the Tribunal understood Mr L’s main concern was the reputational harm he might suffer if he were to be identified in connection with the stayed proceeding. That is apparent from the two-stage approach adopted by the Tribunal in its suppression decision, where it first considered the desirability of publication generally before moving on to consider publication and its potential impact on the suppression order in the stayed proceedings. In any event, I am satisfied that the potential reputational harm in question does not justify the broad suppression order sought given the public interest in Mr L’s conduct.41
[63] Finally, I do not accept that the Tribunal erred in failing to consider the interests and privacy of witnesses in the proceeding. Every witness in the decision had name suppression. The Tribunal explicitly noted that Mr L’s former partner acknowledged publication of Mr L’s name might lead to his identification by people that knew them together, but that he accepted that risk. In relation to the patient and their family, the argument is premised on a person engaging in the sort of comparative exercise that I have already concluded above is inherently unlikely.
Conclusion and result
[64]The appeal is dismissed.
[65] I order that this judgment is not to be distributed beyond the parties and counsel for 20 working days following judgment. This is to preserve the appellant’s ability to pursue an appeal should he wish to do so, and to provide counsel an opportunity to
41 See Ahlawat v R [2023] NZSC 28 at [12].
raise any issues regarding suppression of any aspect of this judgment or the decision under appeal.42
[66] I would be inclined to order the costs in favour of the respondent on a 2B basis. If the parties are unable to reach agreement they may file memoranda and I will determine the issue on the papers.
Isac J
Solicitors:
Bartlett Law, Wellington for Appellant
Nursing Council of NZ, Wellington for Respondent
42 It may be appropriate to make non-publication orders in relation to the names and particulars of the appellant and the witnesses in the Tribunal’s decision under appeal, given the extensive references that are made in that decision to the stayed proceeding.
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