P v New Zealand Psychologists Board
[2023] NZHC 316
•27 February 2023
PERMANENT SUPPRESSION OF NAME AND IDENTIFYING PARTICULARS OF APPLICANT GRANTED UNDER S 112 OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003 – SEE [161] OF JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-320
[2023] NZHC 316
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER OF
an application for judicial review
BETWEEN
P
Applicant
AND
NEW ZEALAND PSYCHOLOGISTS BOARD
Respondent
Hearing (by VMR): 13 February 2023 Counsel:
A H Waalkens KC and S Courtney for the Applicant J Coates and T Morrison for the Respondent
Judgment:
27 February 2023
JUDGMENT OF GWYN J
Solicitors:
Sandi Anderson & Partners, Auckland Claro Law, Wellington
P v NEW ZEALAND PSYCHOLOGISTS BOARD [2023] NZHC 316 [27 February 2023]
TABLE OF CONTENTS
Introduction [1]
Background [3]
Statutory framework [9]
Professional Conduct Committees [15]
Proceedings before the Tribunal [28]
The complaint against P [34]
The maintenance of professional boundaries in general [44]
Management of the client’s care in the context of the duration of the relationship
[52]
P’s alleged role in the management of the client’s personal affairs [57]
The PCC recommendation [59]
Board consideration and direction [62]
Issues before the Court [78]
Did the Board have power to direct the PCC to reconsider? [79]
Board’s submissions [83]
Applicant’s submissions [89]
Discussion [95]
Principle of finality [95]
Threshold [106]
Breach of Code of Ethics [117]
Consistency [123]
Conclusion [135]
Was the direction given to the PCC by the Board unlawful and/or improper?
[136]
Discussion [145]
Relief [150]
Permanent name suppression [152]
Costs [163]
Introduction
[1] This is an application by P for judicial review of a decision by the New Zealand Psychologists Board (the Board), to direct a Professional Conduct Committee (PCC) to reconsider a decision it had made following an investigation into a complaint made against P.
[2] The applicant says that the Board’s decision and the direction it provided to the PCC were unlawful and/or unreasonable.
Background
[3] P is a psychologist. On 4 February 2021 the Board received a complaint about P, alleging numerous breaches of professional boundaries over the course of P’s professional relationship with a client. The complainant is the brother of the client.
[4] The Board considered the complaint and referred it to a PCC for investigation under s 68(1) of the Health Practitioners Competence Assurance Act 2003 (Act).
[5] On 3 February 2022 the PCC concluded its investigation and issued its final report to the Board, P and the complainant. In its report, the PCC found that P’s conduct was in breach of their professional Code of Ethics and professional standards, in that:
(a)P failed to maintain professional boundaries with their client;
(b)P’s clinical management did not reflect the standards expected of a registered psychologist; and
(c)P’s role in the management of their client’s personal affairs reflected a total lack of insight into the meaning of professional boundaries and conflicts of interest.
[6] The PCC’s decision under s 80(1) of the Act was to recommend that the Board review P’s competence. The PCC did not consider that a charge ought to be brought
for professional misconduct in the Health Practitioners Disciplinary Tribunal (Tribunal).
[7] On 14 April 2022 the Board considered the PCC’s report and concluded that the PCC had failed to apply the correct legal test for professional misconduct and the threshold for laying a disciplinary charge before the Tribunal.
[8] The Board decided to direct the PCC to reconsider its decision. That direction was communicated to the PCC in a letter dated 2 June 2022.
Statutory framework
[9] The principal purpose of the Act 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 professions”.1
[10] The Act provides a legal framework for the management of complaints about health practitioners. The Act establishes or continues in existence authorities which are bodies responsible for the regulation and oversight of practitioners of a particular health profession.2 The New Zealand Psychologists Board is a responsible authority under the Act.3 One of the functions of an authority is to “receive information from any person about the practice, conduct, or competence of health practitioners and, if it is appropriate to do so, act on that information”.4
[11] Authorities also have the function of setting standards of ethical conduct to be observed by health practitioners of the profession regulated by the particular authority.5
[12] Part 3 of the Act is concerned with competence, fitness to practise and quality assurance. “Competence reviews”, which a PCC can recommend under s 80(2)(a), are conducted under Part 3. The competence review process is designed to be
1 Health Practitioners Competence Assurance Act 2003, s 3(1) (Act).
2 Sections 5 and 114.
3 Section 114, sch 2. 4 Section 118(1)(f). 5 Section 118(1)(i).
educative and to ensure that practitioners are practising at the “required standard of competence.”6
[13]Part 4 of the Act addresses complaints and discipline against practitioners.
[14] Where a responsible authority has information in its possession that it considers raises one or more questions about the appropriateness of a health practitioner’s conduct or the safety of their practice, the responsible authority may refer the matter to a professional conduct committee for investigation.7
Professional Conduct Committees
[15] PCCs are appointed by the responsible authority in accordance with s 71. A PCC is appointed by the relevant authority “in relation to a particular case or cases of a particular class”.8
[16] The PCC must comprise three members – two health practitioners who are registered with the authority and one layperson.9
[17]The authority appoints one member to preside at meetings.10
[18] The authority must consult with the relevant practitioner and the complainant about the intended membership of the PCC.11 The authority must have regard to any objection raised by the practitioner or the complainant, but the decision on appointment remains with the authority.12
[19] PCCs are funded by the responsible authority from a disciplinary levy that is imposed on practitioners and collected by the authority.13
6 That term is defined in s 5; and see also s 36(5).
7 Section 68(1).
8 Section 71(1).
9 Section 71(1).
10 Section 71(3).
11 Section 74(1).
12 Section 75.
13 Section 131(1).
[20] A PCC may regulate its procedure as it thinks fit.14 A PCC must act in accordance with the rules of natural justice and the provisions of the Act.15
[21] A PCC may appoint a legal advisor and/or investigator to assist with its investigation.16
[22] A PCC has broad powers to receive evidence and call for information and documents.17
[23] At the conclusion of its investigation, the PCC must make one or more recommendations under s 80(2) and/or a determination under s 80(3):
…
(2)The recommendations referred to in subsection (1)(a) are—
(a)that the authority review the competence of the health practitioner to practise his or her profession:
(b)that the authority review the fitness of the health practitioner to practise his or her profession:
(c)that the authority review the practitioner’s scope of practice:
(d)that the authority refer the subject matter of the investigation to the Police:
(e)that the authority counsel the practitioner.
(3)The determinations referred to in subsection (1)(b) are—
(a)that no further steps be taken under this Act in relation to the subject matter of the investigation:
(b)that a charge be brought against the health practitioner before the Tribunal:
(c)in the case of a complaint, that the complaint be submitted to conciliation.
…
[24] The PCC must give the health practitioner concerned and any complainant a reasonable opportunity to make submissions and be heard on the matter under investigation, before making a recommendation or determination.18
14 Section 72(2).
15 Section 72(3).
16 Section 73.
17 Sections 76–77.
18 Section 80(4).
[25] After a PCC has made its recommendation(s) and/or determination under s 80(1), it is required to give written notice of its decision to the Registrar of the responsible authority, the health practitioner and the complainant.19
[26] A responsible authority that receives notice of a recommendation from a PCC must promptly consider that recommendation.20
[27] There is no statutory right of appeal against a recommendation or determination of a PCC made under s 80. The statutory rights of appeal against other decisions made under the Act are set out in s 106(2) and include a right of appeal to the High Court against an order made by the Tribunal under s 100.
Proceedings before the Tribunal
[28] The Tribunal is established under s 85 of the Act. Its functions include to hear and determine charges brought under s 91.21
[29] The membership of the Tribunal consists of a chairperson and one or more deputy chairpersons, each of whom must be a barrister or solicitor of the High Court of not less than seven years’ practice, together with the members of the panel maintained by the Minister under s 87.22 The panel members are practitioners of each profession, who must hold current practising certificates, and lay people.23
[30] A disciplinary charge against a health practitioner can be laid before the Tribunal by either a PCC, following an investigation under the Act, or the Director of Proceedings, following an investigation by the Health and Disability Commissioner under the Health and Disability Commissioner Act 1994.24
[31] If a charge is laid by a PCC, it has the responsibility for formulating and prosecuting that charge before the Tribunal.25 A disciplinary charge laid before the
19 Section 81(1).
20 Section 81(3).
21 Section 85(a).
22 Section 86(1).
23 Section s 87.
24 Section 91(1).
25 Section 91(4).
Tribunal by a PCC must include a statement to the effect that the PCC has reason to believe that a ground exists entitling the Tribunal to exercise its powers under s 100.26
[32] The Tribunal’s powers in s 100 are powers to make a finding on a disciplinary charge including a finding that the practitioner has been guilty of professional misconduct under s 100(1)(a) and/or s 100(1)(b).
[33]The grounds on which a practitioner may be disciplined are:27
100 Grounds on which health practitioner may be disciplined
(1)The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
(c)the practitioner has been convicted of an offence that reflects adversely on his or her fitness to practise; or
(d)the practitioner has practised his or her profession while not holding a current practising certificate; or
(e)the practitioner has performed a health service that forms part of a scope of practice of the profession in respect of which he or she is or was registered without being permitted to perform that service by his or her scope of practice; or
(f)the practitioner has failed to observe any conditions included in the practitioner’s scope of practice; or
(g)the practitioner has breached an order of the Tribunal under section 101.
…
26 Section 91(2).
27 Section 100.
The complaint against P
[34] The client’s brother made the complaint to the Board on 4 February 2021. The complaint alleged breach of professional boundaries by P in relation to the client, over the 27-year period of their psychologist/client relationship.
[35] On 8 July 2021, after the complaint had been through the relevant process under the Health and Disability Commissioner Act, and had been returned to the Board, the Board decided to refer the complaint to the PCC under s 68 of the Act.
[36]The Board asked the PCC to consider:
Is the nature of [P’s] relationship with the client … appropriate, having regard to (but not limited to):
i.The maintenance of professional boundaries in general;
ii.The management of the client’s care in the context of the duration of the relationship; and
iii.[P’s] alleged role in the management of the client’s personal affairs.
[37] In early August 2021 the PCC wrote to the complainant and to P advising them of the particulars of the matter the PCC was to investigate, the limits on the PCC’s jurisdiction, the PCC’s natural justice obligations under the Act and the process the PCC would follow. Further information was sought from both the complainant and P. In addition, using its powers under s 77 of the Act, the PCC sought information from two other psychologists, both of whom had acted or were currently acting, as supervisors for P.
[38]The PCC also obtained clinical notes from P.
[39] Both the complainant and P were offered the right to meet in person with the PCC.28 The complainant met with the PCC by Zoom, with two support persons attending.
28 Section 80(4).
[40] All of the relevant information held by the PCC was provided to P and a Zoom meeting was conducted with P and their legal representative on 19 November 2021.
[41] The PCC concluded its investigation on 31 January 2022 and issued its report on 3 February 2022 (the PCC Report).
[42]The findings of the PCC were:
P’s conduct was in breach of [their] professional Code of Ethics, primarily related to Principle 3: Integrity in Relationships:
Clause 3.3: Psychologists taking responsibility to maintain appropriate structure in their relationships with persons and people with whom they work, and
Clause 3.4: Psychologists recognise that conflict of interests are a threat to the integrity of relationships.
[43] In relation to the three specific matters the PCC was asked to consider, it concluded as follows.
The maintenance of professional boundaries in general
[44] The bulk of the PCC’s analysis related to this matter. The PCC noted that it was not confident that, as asserted by P, they had maintained professional and therapeutic boundaries throughout the course of the engagement between them and the client.
[45]It noted in particular:
(a)A home visit by P to the client in approximately 2016.
(b)Intervention by P to assist the client to find accommodation, after the client had been placed in Women’s Refuge.
(c)Contact with the client’s children, at the client’s request, after her second serious self-harm attempt in 2020.
(d)When the client started a relationship with her next-door neighbour, P became involved in trying to protect the partner’s children, who were taken away from him.
(e)P agreed to prepare a court report for the client’s partner (who had assaulted the client and was facing criminal charges). P explained to the PCC that they had not agreed to complete the report but did not want to be seen by the client as being unsupportive. The PCC noted that the provision of misleading information indicated a lack of role clarity, poor clinical decision making and poor professional boundaries.
(f)In 2020 P became involved in the client’s letter of complaint about the client’s GP. The PCC noted this engagement had the potential to undermine role clarity and professional boundaries.
(g)In 2021 the client gave P an envelope of jewellery for safekeeping.
(h)P visited the client in hospital prior to and after the client’s surgery. P said they did so to provide psychological support. During the course of one visit P signed (as a signatory witness) a document presented by the client, which was the client’s will, although P said they were not aware it was a will and did not know the content (including that P’s spouse’s karate club was a significant beneficiary). A clinical note contradicted P’s statement that they did not know it was a will.
[46] The PCC noted that these matters brought into question P’s statement that they maintained professional boundaries at all times.
The PCC considers that [P] was confused in [their] understanding of the standard of professional boundaries expected by a Clinical Psychologist in a professional client/psychologist relationship. It is also questionable as to how the client knew the details, including the address, of [P’s spouse’s] karate club.
[47] The PCC also noted that it had other concerns with regards to P’s practice (such as recordkeeping) and the establishment and maintenance of appropriate professional
boundaries between P and the client which were highlighted in additional statements provided by P.
[48] In December 2020 when the client was in hospital after a self-harm event, P apparently made decisions as next of kin to facilitate the client’s transfer to a rehabilitation service. The PCC notes that this blurred the boundaries defining the relationship between P and the client.
[49] P advised the PCC of having received limited gifts from the client (a tea tree plant many years ago and glass plates in late 2020). P also advised the PCC that they came into possession of the client’s drumkit, via the client’s boarder who delivered this to their home. P subsequently sold the drum kit rather than gifting it as the client had requested, as in their view the client would benefit from having the money, having survived her self-harming event. The PCC notes that P’s description of the events relating to the sale of the drumkit highlights concerns relating to blurred boundaries and roles within the therapeutic relationship.
[50] The PCC noted it had limited evidence that, despite the duration of the relationship, supervision was sought specifically with respect to the client, other than on one occasion when P had grounds to notify the police about risk issues.
[51]The PCC said:
[P] presented to the PCC as having little insight with respect the blurring of professional boundaries. It is therefore perhaps unsurprising that [P] did not seek supervision given the assessed lack of insight [P] demonstrated regarding potential conflict of interests or dual roles (despite the issues re: text/phone calls; being asked to contact family members, being asked to execute a will; storage of personal effects and home visits) during the PCC process.
Management of the client’s care in the context of the duration of the relationship
[52] The PCC noted that this issue was largely covered in its consideration of the preceding issue.
[53] The PCC assessed that P had attempted to hold the best interests of the client in mind throughout the duration of their therapeutic relationship. The PCC viewed
that P had clearly established a strong, trusting relationship with the client and had a well-established therapeutic connection. The PCC said:
It is unclear however what progress was made towards treatment goals and how the formulation was developed over the lengthy period of the therapeutic relationship and engagement. In addition, the duration of the relationship likely contributed to insufficient attention to clinical matters, overfamiliarity and erosion of boundaries resulting in potentially unsafe, and contraindicated, engagement and intervention.
[54] The PCC also noted a significant absence of good record keeping. There was no documentation relating to informed consent, confidentiality, the parameters of the engagement; there was limited and inconsistent clinical notes; absence of a clear intervention or safety plan and an absence of documented and/or reviewed goals. The PCC said that “[e]ngagement was ad hoc, unstructured, and inconsistent.”
[55] The PCC found that the relationship lacked clear boundaries and there were repeated breaches of professional boundaries without clearly documented details and/or clinical rationales. P on frequent occasions acted, within the therapeutic relationship, in a manner that would not be within the Code of Ethics expected in a professional capacity as a psychologist.
[56] P developed boundaries with the client that were inconsistent, questionable and unsafe.
P’s alleged role in the management of the client’s personal affairs
[57] The PCC found this was of serious concern: the evidence demonstrated that P engaged in a number of activities that fell outside the professional role of the psychologist (namely, safekeeping of jewellery, involvement in selling the client’s possessions, being the contact point for the client’s boarder and subsequently in possession of the client’s house keys, signing the client’s will and being identified as “next of kin”).
[58] The PCC was also concerned that in retrospect P struggled to see that their behaviour led to confusing boundaries within the relationship. The PCC said “[t]his
lack of insight or ability to reflect constructively and critically into [their] own practice was further concerning.”
The PCC recommendation
[59]In conclusion, the PCC Report noted:
5.1.1.[P] did not maintain general professional boundaries with [their] client. However we are of the opinion that was a reflection of [P’s] total lack of insight of what professional boundaries and conflict of interest mean, and was not done with malicious intent or to achieve personal gain.
5.1.2.The clinical management of the client by [P] did not reflect the standards expected of a Registered Psychologist. For example, [P] had no concept of expected practice in terms of comprehensive clinical record keeping, informed consent, formulation of therapeutic goals and client safety plans.
5.1.3.In terms of [P’s] alleged role in the management of [the client’s] personal affairs, again we feel that this is an example of [P] having no insight into what professional boundaries and conflict of interest mean
– particularly when a Registered Psychologist has a multi-year enduring relationship with a client. We are of the opinion that any involvement in [their] client’s personal life affairs was not done with premeditated intent for [P’s] own personal gain”.
[60]The PCC’s conclusory paragraph was:
The PCC turned its mind as to whether the breaches it has found undermine patient safety in such a way that a charge ought to be formulated for professional misconduct in the Health Practitioners Disciplinary Tribunal. The PCC did not consider this threshold to be met but, rather, considered that [P’s] substantiated failings can be remedied by a competence review as set out below.
[61] The PCC recommended, under s 80(2)(a), that the Board review the competence of P to practise their profession, focusing on the competencies of:
(a)The establishment of clear role clarity and therapeutic and professional boundaries with clients;
(b)Clinical record keeping (including, but not limited to, aspects of informed consent, case notes, documentation of payment for services, formulation and therapeutic goals);
(c)Consideration as to the advantages and disadvantages of the use of various modes of therapeutic delivery (including but not limited to face to face, telehealth, written communications);
(d)Risk management (including risk assessment and planning); and
(e)The consistent use of, and structures around, supervision.
Board consideration and direction
[62] The Board referred the PCC Report to the Board’s Conduct, Competence and Fitness Committee (CCFC). The CCFC considered the PCC Report at its meeting on 14 February 2022. The CCFC “noted surprise at the PCC’s recommendation given some of the findings the PCC recorded in the report”. The CCFC referred the report to the Board.
[63] On 4 March 2022 the Board indicated to P its preliminary view not to accept the outcome of the PCC investigation and that the complaint should be referred back to the same PCC for reconsideration. P’s counsel responded that the Board had no power to do so and the proposal was improper and unlawful.
[64] In the intervening period, the Board received a number of communications from the complainant, raising a number of concerns about the PCC’s investigation and requesting information about how to challenge the outcome.
[65] On 14 April 2022 the Board met to consider the submissions it had received on its preliminary view. It concluded that the PCC had failed to apply the correct legal test for professional misconduct and the threshold for laying a disciplinary charge before the Tribunal and that it would direct the PCC to reconsider the decision it had made under s 80(1) of the Act.
[66] The Board minutes of 14 April 2022 recorded that, in reaching the decision to direct the PCC to reconsider, it “faced a dilemma”, in that the complainant was very unhappy with the decision made by the PCC and had threatened legal action. P had suggested that the Board had no power to interfere with the PCC’s decision. The Board
therefore considered it needed to weigh up the competing rights and interests of those involved and be guided by the first principles of its role – that is, acting in a way that achieves public protection and objectives of the Act. The minutes recorded that “it [was] not in the public interest for the Board to need to incur financial costs and possibly reputational damage in responding to a challenge to a decision of a Board committee in circumstances where the Board considers the decision is flawed.” The Board also noted P’s interests in finality.
[67] The Board concluded that a direction to the PCC to reconsider the decision made under s 80(1) of the Act, but not to reinvestigate the complaint, was the approach that best accounted for the different interests at play.
[68] On 2 May 2022 the Board’s Registrar wrote to P’s counsel to provide notice of the decision to direct the PCC to reconsider its decision and advised that the next step would be for the Registrar to issue the direction to the PCC.
[69] P’s counsel responded on 6 May 2022 advising that judicial review proceedings would be filed if the Board did not withdraw its decision.
[70] On 12 May 2022 the Board’s solicitors responded to P’s counsel, advising that the Board would not be withdrawing its decision but would agree to take no further action provided that P filed their judicial review without undue delay, and by no later than 20 May 2022.
[71] On 23 May 2022 counsel for P responded advising that P had decided to take a “pragmatic approach” and would agree to the Board proceeding to redirect the PCC, provided P had the opportunity to comment on the direction the Board proposed to give to the PCC.
[72] On 25 May 2022 the Board’s solicitors responded attaching a draft proposed instruction letter to the PCC. The letter made it clear that the Board was not seeking P’s agreement to the instruction, but rather providing an opportunity to comment.
[73] On 26 May 2022 counsel for P returned a tracked change version of the draft proposed instruction letter to the PCC.
[74] On 2 June 2022 the Board’s solicitors responded attaching a copy of the final redirection letter that had been sent to the PCC. While the Board confirmed that it had considered P’s comments and proposed amendments, the redirection letter sent to the PCC included only one of P’s proposed changes: the last sentence read “The Board looks forward to hearing from the PCC once it has reconsidered this matter.”
[75] The Board’s direction was communicated to the Chair of the PCC in a letter dated 2 June 2022 (the redirection letter):29
…
The PCC is directed to complete the following steps in order to reach a new decision under s 80(1):
1)Reconsider its decision under s 80(1) HPCAA.
2)Undertake the reconsideration referred to in 1) above by applying the following considerations to the findings that the PCC has made in paragraphs 4 and 5.1.1 –5.1.3 [“Recommendation and/or Determination] of its report:
a.The established legal tests as to professional misconduct under s 100(1)(a) and (b) HPCAA. These are the tests set by the Health Practitioners Disciplinary Tribunal and the courts when interpreting s 100(1)(a) and (b) HPCAA.
b.The threshold for determining whether a charge should be laid before the Health Practitioners Disciplinary Tribunal.
c.The Board’s Professional Conduct Committee Guidelines, in particular, the decision making guidance in part D of Appendix D.
3)Prior to making any new decision, provide [P] an opportunity to make submissions and be heard by the PCC.
4)Make a new decision under s 80(1) HPCAA and provide an amended report to the Board under s 81 HPCAA.
The PCC is not required to re-open its investigation. Rather, in reconsidering its decision, the PCC should proceed on the basis of the findings that it has made and recorded in paragraphs 4 and 5.1.1 – 5.1.3 of its report.
…
29 (original emphasis).
[76] On the same day, P’s counsel responded that the Board’s actions were unreasonable and that counsel had instructions to file judicial review proceedings. Counsel requested that the Board confirm the PCC would be instructed to take no further action in the interim.
[77] Subsequently, the parties reached an interim agreement under which the Board has directed the PCC to take no further action pending the outcome of these proceedings. On 2 June 2022 the Board’s Registrar wrote to the Chair of the PCC and advised that the PCC was to take no further action on the matter and that the Chair should not circulate the letter to their fellow PCC members at this point. The letter asked that the Chair advise the Registrar if that circulation had already occurred.
Issues before the Court
[78]The two principal issues for decision are:
(a)the Board’s decision to direct the PCC to reconsider its decision; and
(b)the direction given to the PCC by the Board.
Did the Board have power to direct the PCC to reconsider?
[79] The parties agree that a PCC is permitted to reconsider a decision under s 80(1) of the Act where there are exceptional circumstances, such as a clear and fundamental error.30
[80] The parties are also agreed that the two-step test identified by the Court of Appeal in F v Medical Practitioners Disciplinary Tribunal is applicable to cases of this nature:31
(a)Has there been a departure from acceptable professional standards?
30 K v The Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand
[2022] NZHC 307 at [96].
31 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA), cited with approval in
H v Director of Proceedings [2018] NZHC 2175 at [19].
(b)Is the departure significant enough to warrant sanction?
[81] There is no dispute that the Tribunal is required to approach the first stage of the two-step process in the way it has always done, by considering “whether the practitioner has departed from the acceptable professional standards.”32
[82] Where the parties disagree is as to what conduct meets the second step, the threshold question, and whether the PCC considered that threshold question and applied the right legal test. If it did not, whether that constitutes a clear and fundamental error that would allow the PCC process to be revisited.
Board’s submissions
[83] The Board raised a number of preliminary factors in support of the general proposition that the PCC’s decision could be reopened:
(a)The PCC is an investigatory or administrative body and has no power itself to make a finding of professional misconduct.
(b)It is the Board, rather than the PCC itself, that is seeking to reopen the PCC decision.
(c)The nature of the PCC decision – that is, it was a recommendation, not a determination.
[84] The Board’s position is that the criteria for reopening the PCC process are met because:
(a)the PCC made a clear and fundamental error by failing to consider the proper legal test when determining whether its factual findings about P’s conduct warranted a charge of professional misconduct being laid; and
32 Martin v Director of Proceedings [2010] NZAR 333 (HC) at [22].
(b)this amounts to exceptional circumstances and/or compelling grounds requiring that the Board be permitted to direct the PCC to reconsider its decision.
[85] The Board says that, in deciding under s 80 whether or not to make a determination to lay a charge before the Tribunal, a PCC must properly reach a view as to whether a ground exists that would entitle the Tribunal to exercise its powers under s 100. Mr Coates for the Board says it is clear that the PCC did not apply the correct legal test for professional misconduct and the threshold for laying a charge before the Tribunal.
[86] The only place in its report where the PCC considers this question is where it says, as quoted at [60] above, that it turned its mind to whether P ought to face a professional misconduct charge.
[87] The Board says that “undermining patient safety” is not the threshold for laying a charge before the Tribunal.
[88] The Board says that the PCC also failed to consider and/or place proper weight on established principles in the health practitioners competence assurance jurisdiction, including protection of the public; setting of standards for the profession; and consistency in accountability. In particular, the Board points to the PCC’s finding that P was in breach of the Code of Ethics to support its submission that the PCC did not apply the correct threshold. Similarly, it says that the lack of consistency between P’s situation and other comparable cases indicates it did not apply the correct threshold.
Applicant’s submissions
[89] Mr Waalkens KC, counsel for P, submits that it is not open to the Board, or this Court, to speculate as to whether the PCC may have misdirected itself on the relevant legal test, given that it is plain it considered and determined that the threshold for formulating a charge had not been met. Mr Waalkens highlights the advice from the CCFC to the Board, which said “ … on the face of it the PCC may have misdirected
itself on the relevant law …”.33 Similarly the Board minutes of 23 February 2022 state “[t]he PCC appears to have misdirected itself as to the ‘threshold’ for professional discipline.”34 Counsel says it is plain that neither the CCFC nor the Board itself could definitely conclude that the PCC had applied the wrong test.
[90] The applicant says that, in any event, only the most serious misconduct reaches the threshold. P relies on, among other cases, Cole v PCC, where Gendall J said: “It is clear that a finding of professional misconduct is a significant matter indeed. It should be reserved for only the most serious misconduct.”35
[91]The applicant also relies on Vatsyayann v PCC, where Simon France J said:36
… 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…
[92] Similarly in J v Director of Proceedings, Baragwanath J said “[p]rofessional misconduct expresses a high threshold of breach of duty.”37 And more recently in Johns v Director of Proceedings Moore J – although agreeing that Martin v DPP is the correct approach38 – confirmed that the threshold question is one which ought to be considered with care having regard to the purposes of the Act, principally of protecting the public, and the inevitable adverse consequences borne by the practitioner in the event of a finding of professional misconduct.39
[93] Mr Coates for the respondent relies on Martin v Director of Proceedings where Courtney J concluded:40
… 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.
33 (emphasis added).
34 (emphasis added).
35 Cole v PCC [2017] NZHC 1178 at [45].
36 Vatsyayann v PCC HC Wellington CIV-2009-482-259, 14 August 2009 at [8].
37 J v Director of Proceedings HC Auckland CIV-2006-404-002188, 17 October 2006 at [35].
38 At [85].
39 Johns v Director of Proceedings [2017] NZHC 2843 at [86].
40 Martin v Director of Proceedings, above n 32, at [32].
[94] The Board also relies on the more recent decision in Professional Conduct Committee of the Physiotherapy Board v R where Powell J said “I am satisfied the respondent’s conduct was sufficiently serious to warrant disciplinary sanctions or penalties. It is after all a threshold rather than a substantive hurdle”.41
Discussion
Principle of finality
[95] The starting point is the principle of finality, summarised by the Court of Appeal in Goulding v Chief Executive Ministry of Fisheries:42
A valid administrative decision in the exercise of a statutory power… communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final. A final decision which is made in the exercise of a power which affects legal rights
… is irrevocable. So is any other decision made under a statutory power where the Act explicitly or implicitly provides that once finally exercised the power of decision is spent. That is the position under the common law. …
[96] The Court of Appeal in Goulding acknowledged the possibility of exceptional cases.43
[97] I consider first the preliminary issues raised by the Board at [83] above. The first of those concerns the nature of the body whose decision is sought to be reopened. A review of the cases indicates that the application of the principle of finality is less absolute in relation to administrative bodies44 and is limited in the context of investigative processes..45
[98] However, the PCC is not purely an investigatory or administrative body. It has both an investigatory and a deliberative function. It may receive evidence;46 require the production of papers, documents, records or things.47 Under s 80 of the Act it is required to make one or more recommendations and/or determinations. Although it
41 Professional Conduct Committee of the Physiotherapy Board v R [2018] NZHC 2531 at [31].
42 Goulding v Chief Executive Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].
43 At [30].
44 See K v The Complaints Assessment Committee, above n 30, at [55].
45 XYZ v Legal Professional Board of Tasmania [2014] TASFC 13, (2014) 23 Tas R 179, cited in K v The Complaints Assessment Committee, above n 30, at [58].
46 Act, s 76.
47 Section 77.
has power to regulate its own procedure,48 it must comply with the rules of natural justice.
[99] As to who seeks to reopen the decision, it is correct that, as the respondent says, this case is different from K, in that here it is the Board – the statutory regulator
– seeking to reopen the process. In K, the Complaints Assessment Committee (the equivalent of the PCC) was looking to reopen its own process. Mr Coates says that must make a difference: the conduct in question could be any one of a range of errors by a PCC, for example, failure to comply with natural justice. In that situation, the Board, with its broader role, must be able to direct the PCC to reconsider.
[100] I am not persuaded that the identity of the body seeking to have the process reopened makes a difference. It is the nature of the alleged error that is key. That is, was there a clear and fundamental error?
[101] Finally, does the nature of the PCC’s decision affect the power to reopen its process? In K, the CAC argued that the strength of the common law “finality” principle is strongly dependent on the finality of the particular decision at issue.49 Counsel there argued that a decision bringing an investigation to an end without formal determination as to whether there has been misconduct or not sits at the low end of the “finality” spectrum.
[102] But as in K, I am not convinced that the nature of the PCC decision – a recommendation, rather than a determination – is determinative. Goulding confirms that the principle of finality is strongest where legal rights are affected.
[103] Here, in making its decision, the PCC was not acting merely in an investigatory capacity. It undertook an investigation (which the Board acknowledges was thorough) and, on the basis of that investigation, made its recommendation (although deciding not to make a determination).
48 Section 72.
49 K v The Complaints Assessment Committee, above n 30, at [66].
[104] Although a PCC cannot itself make a finding of professional misconduct, the PCC’s recommendation was one which “affected legal rights”. The recommendation that the Board review P’s competence to practise the profession50 was of legal significance for P. The PCC’s decision not to make a determination, under s 80(3), that a charge be brought against P before the Tribunal did affect P’s rights. At that point, they were no longer faced with the possibility of a Tribunal process.
[105] I conclude that, as in K, it is only a clear and fundamental error that would allow the Board to direct the reopening of the PCC process.
Threshold
[106] The submissions before me focussed on what is the threshold at the second step – what departure from acceptable professional standards is significant enough to warrant sanction?
[107] As I have outlined, the Board relies on Martin to submit that the threshold is “not unduly high”, and it says that the way in which the PCC formulated the threshold test was therefore plainly wrong.51 In contrast, the applicant relies on Cole, and some subsequent cases, to submit that it is “only the most serious misconduct” that meets the threshold.52
[108] In Martin Courtney J undertook a comprehensive review of the legislative history of the Act. As the Court noted there, the range of conduct previously accommodated in the three offences of disgraceful conduct, professional misconduct and conduct unbecoming in now accommodated in the two forms of “professional misconduct” at s 100(1)(a) and (b) of the Act.53
[109]I accept that the test in Martin is the correct test. As Courtney J said:54
Given that misconduct within the scope of practice under s 100(1) can now cover conduct ranging from low-level misconduct to gross negligence and even deliberate
50 Under Act, s 80(2)(a).
51 Martin v Director of Proceedings, above n 32.
52 Cole v PCC, above n 35.
53 At [13].
54 At [28].
misconduct, a threshold articulated in the context of the equivalent of disgraceful conduct could not be applied to a charge under s 100(1)(a). If it did, many cases of misconduct in the scope of professional practice would be excluded from a disciplinary response, contrary to Parliament’s obvious intention.
[110] But that does not resolve the question. The Court is still required to assess whether in fact the PCC did not apply this test.
[111] The composition of the PCC is relevant. It is composed of two health practitioners, plus a layperson.55 Unlike the Tribunal, it is not required to have legally qualified members. While a Committee may appoint a legal advisor,56 it is not required to do so. In those circumstances, a PCC is less likely to use precise legal language and should not be held to the same standard as the Tribunal in that regard.
[112] Other aspects of the PCC report are relevant. The PCC notes in the introduction to the report that “The report with recommendation(s) and/or a determination is made under sections 80-81 of the HPCA Act.” Section 80 sets out the recommendations and determinations that were open to the PCC. Section 81(2) states that if the PCC decides to lay a charge against the health practitioner before the Tribunal, the PCC must formulate an appropriate charge and lay it before the Tribunal. The PCC was thus aware of the consideration and process required of it.
[113] In any event, there is some basis for the PCC’s invocation of the language of “patient safety”. The principal purpose of the Act 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 professions.”
[114] In addition, the PCC’s conclusion followed what the Board acknowledges was a thorough investigation. The PCC Report sets out the facts and its conclusions in considerable detail. Given the nature of the PCC’s findings it was open for it to conclude that it was a competence issue, and to make a recommendation accordingly.
[115] While the PCC statement on which the Board relies might be criticised for being economical, I agree with Mr Waalkens that it is simply not possible to go on and
55 Act, s 71.
56 Section 73.
speculate about the PCC’s reasoning and to reach a conclusion that it applied the wrong threshold. As Mr Waalkens noted, both the CFCC and the Board itself did not state this as an unequivocal conclusion.
[116] I cannot conclude on the basis of the wording in the PCC report alone that it applied the wrong legal test.
Breach of Code of Ethics
[117] One of the Board’s supporting arguments is that the PCC had found that P’s conduct was in breach of their professional Code of Ethics, primarily in relation to Principle 3: Integrity in Relationships.
[118] It is clear that Codes of Ethics and/or professional Guidelines do not impose a de facto legal standard. As Professor Joanna Manning writes:57
To date, … the law has rejected “the dispositive stance”, whereby guidelines would define the de facto legal standard applied in every case. Just as evidence of accepted practice is not determinative, so also compliance with a guideline is not conclusive, but is strong evidence of the legal standard of care.
[119]In Staite v Psychologists Board,58 the High Court noted that:
The code of ethics of the New Zealand Psychological Society should not be treated as a straight-jacket [sic] to be applied irrespective of the circumstances and context in which the psychologist is acting.
[120]Similarly, in Collie v Nursing Council of New Zealand, Gendall J said:59
Breach of a standard in a code may or may not be professional misconduct, or other conduct deserving of disciplinary sanction. It all depends and is a question of degree.
57 Peter Skegg and Ron Paterson (eds) Health Law - A to Z of New Zealand Law (online looseleaf ed, Thomson Reuters, Wellington, 2015) at [30.5.6] (footnotes omitted).
58 Staite v Psychologists Board [1998] 18 FRNZ 18 (HC) at 34.
59 Collie v Nursing Council of New Zealand [2001] NZAR 74 (HC) at [30].
[121] This approach was affirmed by Gendall J in XY v Professional Conduct Committee of the Medical Council of New Zealand.60 And, most recently, in Edwards v PCC, Lang J cited Staite with approval, noting:61
… codes and standards should be regarded as a guide to be taken into account by the Tribunal when exercising its independent judgment as to whether, in the circumstances of a particular case, there has been professional misconduct.
[122] I conclude that the PCC’s finding that P had breached the Code of Ethics does not, in itself, mean that it is clear that the PCC did not apply the correct threshold test.
Consistency
[123] The Board notes that one aspect of its role is to ensure consistency in the application of standards of ethical conduct and accountability generally. It noted in the minutes of the 23 February 2022 Board meeting: “… the PCC’s decision seems inconsistent with other cases where charges have been laid against practitioners before the Tribunal”.
[124] The Board relies on a range of previous authorities where, it says, similar conduct to that found in relation to P was held to meet the threshold. It seems to be at least implicit in the respondent’s argument that if the PCC had applied the “correct” threshold test, it would have directed a disciplinary charge.
[125] The Board is, in effect, asking the Court to reason backwards: on the basis of previous cases, which the Board says are comparable, the PCC should have concluded that a disciplinary charge was required. It follows that its failure to lay a charge, meant that it had applied the incorrect threshold.
[126] That reasoning does not withstand scrutiny. First, it is not for the Board, or this Court, to determine whether the PCC should have concluded that a disciplinary charge was necessary.
60 XY v Professional Conduct Committee of the Medical Council of New Zealand [2022] NZHC 1498 at [129].
61 Edwards v PCC [2022] NZHC 3189 at [12].
[127] Second, the cases cited by the respondent do not necessarily support the Board’s view. On closer examination, most or all of those cases involved conduct of a more serious nature, or a combination of conduct that cumulatively was more serious. For example, in Schubert,62 a decision of the Tribunal, the charges concerned a psychologist who was providing couples counselling to S and E. The psychologist entered into separate relationships with each of S and E. Those relationships included:
(a)inviting S to a social event;
(b)staying with S at a holiday house;
(c)giving gifts to S;
(d)visiting E at his house where they had lunch and went swimming;
(e)visiting E at his house, drinking wine and talking to E about S’s complaint against Ms Schubert;
(f)disclosing S’s personal health information to E;
(g)putting pressure on E to persuade S to withdraw S’s complaint against Ms Schubert.
[128] In Cole v Professional Conduct Committee,63 a prison-employed registered nurse provided accommodation in her home to a former patient/prisoner on his release from prison. They subsequently had a sexual relationship (although Ms Cole says it was not consensual).
[129] Le Roux was also a decision of the Tribunal. There the client’s case was noted as “very complex” and included a number of “alters” associated with the client’s Dissociative Identity Disorder. Ms Le Roux, the psychologist concerned, had received gifts from her client which the Tribunal accepted were “in excess of what could
62 Schubert 671/Psy14288P.
63 Cole v Professional Conduct Committee, above n 35.
reasonably be expected in any psychologist/client relationship.”64 In addition, the Tribunal found that the number and content of emails between Ms Le Roux and the client were extraordinary, unduly frequent and too long, included both encouragement and discouragement of email communication, blended the professional and personal relationships, and often took place very late at night. Significantly, the email exchanges with alters were “highly inappropriate and a deeply concerning set of exchanges”.65
[130] In Allen, the Tribunal found that Ms Allen (a registered occupational therapist) was found to have breached the standards expected of a therapist in her position, by virtue of the frequency, timing, duration, content and secrecy of the communications between her and the client.66 In that case there was, as Mr Waalkens notes, an undercurrent of sexualised interest between the client and the therapist.67
[131] In Collie v Nursing Council of New Zealand, the nurse practitioner was charged with having accepted payments totalling $25,000 from their elderly patients.68 Similarly, in Schlotjes, another case before the Tribunal, Ms Schlotjes (an occupational therapist) was named in powers of attorney for her client, in relation to property matters and personal care and welfare.69 For that she received a financial benefit of
$5,000, and brought proceedings in the District Court attempting to enforce what was said to be a testamentary promise of the client for a further $25,000.
[132] In contrast, one of the underlying themes of the PCC Report is that P had no malicious intent or intent to achieve personal gain.
[133] In any event, the cases cited by the respondent in this court were primarily appeals from a Tribunal decision, rather than litigation relating directly to PCC decisions, and so include a full examination of the merits, which is not appropriate here.
64 Le Roux 746/Psy15/313P at [181].
65 At [196].
66 Allen 27/OT05/14D.
67 At [31].
68 Collie v Nursing Council of New Zealand, above n 59.
69 Schlotjes 446/OT11/187P.
[134] Finally, on this point, even if the threshold for laying a charge with the Tribunal were met, it is clear from all previous authorities that it is still a matter of judgement for the PCC, on the particular facts and context.
Conclusion
[135] I am not satisfied that the PCC did not apply the correct legal test and threshold. Therefore I conclude that this was not a case of a fundamental, clear error allowing the PCC’s decision to be reopened. I find that the Board did not have the power to direct the PCC to reconsider its decision.
Was the direction given to the PCC by the Board unlawful and/or improper?
[136]For completeness, I also consider the second challenge raised by the applicant.
[137] The applicant says that the 2 June 2022 direction given to the PCC was unlawful and unreasonable.
[138] The Board’s position is that the direction was entirely appropriate: it was consistent with the Board’s 14 April 2022 decision to direct the PCC to reconsider its decision and make a new decision.
[139] The particular section of the direction to the PCC that P challenges is the statement of the reasons for the direction:
The central reason for the Board’s decision was that the Board considered that the PCC made an error in that it failed to apply the correct legal tests for professional misconduct and the threshold for laying a charge before the Tribunal in the unnumbered paragraph that immediately follows 5.1.3 on page 13 [the conclusory paragraph set out at [60] above] of the report dated 3 February 2022.
[140]Counsel for P had suggested that this section should be amended to read:
The central reason for the Board’s decision was that it is not apparent whether the PCC applied the correct tests for professional misconduct and the threshold for laying a charge before the Tribunal in the unnumbered paragraph that immediately follows 5.1.3 on page 13 [the conclusory paragraph set out at [60] above] of the report dated 3 February 2022.
[141] The Board says that it had decided that the PCC had, in fact, made an error of law by failing to apply the correct legal tests for professional misconduct and the threshold for laying a charge before the Tribunal and therefore it did not consider it appropriate to direct the PCC that it was “not apparent” whether the PCC applied the correct tests.
[142] The applicant argues that the direction given to the PCC was not, in fact, a request to reconsider but instead a direction mandating it to issue a disciplinary charge.
[143] The Board resists that allegation. It says the direction to the PCC is to take a series of steps in order to reach a new decision under s 80(1) of the Act. It does not state that the PCC is required to make a determination to lay a disciplinary charge. It is open to the PCC to make any of the recommendations or determinations contemplated in s 80(1). On the wording of the direction, the Board says, it is open to the PCC to reach the same decision under s 80(1), provided that it applies the correct legal tests in doing so.
[144] The applicant also alleges that the Board’s failure to provide guidance to the PCC on the content of the “correct” legal tests also makes it unlawful/unreasonable.
Discussion
[145] The redirection letter states that the Board had decided to “direct the PCC to reconsider the decision”. It directs the PCC to “reach a new decision” and to “[m]ake a new decision” and “provide an amended report”. It directs certain steps to be followed in order to “reach a new decision”. The first step is to “reconsider its decision”.
[146]The second step is to undertake that reconsideration by applying:
(a)The established legal tests as to professional misconduct under s 100(1)(a) and (b) HPCAA. These are the tests set by the Health Practitioners Disciplinary Tribunal and the courts when interpreting s 100(1)(a) and (b) HPCAA.
(b)The threshold for determining whether a charge should be laid before the Health Practitioners Disciplinary Tribunal.
(c)The Board’s Professional Conduct Committee Guidelines, in particular, the decision making guidance in part D of Appendix D.
[147] The primary emphasis in the redirection letter is the PCC’s “decision”, rather than the process by which it reached its decision. That emphasis is reinforced by the fact that the redirection letter does not set out what the “established legal tests” are. The decision that the letter focuses on was that a charge ought not be formulated for professional misconduct in the Tribunal, but that the Board review P’s competence to practise their profession. The redirection requires a “new decision”. The PCC might reasonably have assumed this required it to reach a different decision.
[148] It is in my view implicit in the Board’s redirection that, if the PCC had applied the “correct” legal test, it would have determined that a charge be brought against V before the Tribunal, under s 80(3)(b). The overall effect of the wording of the redirection letter would likely have led the PCC to believe that it was required by the Board, not only to complete a further, amended process, but to reach a different decision. That of course would amount to acting under dictation and leaving the PCC’s further decision open to challenge.
[149]I conclude that the proposed redirection was unlawful and improper.
Relief
[150] Given my finding that the Board was in error to conclude that the PCC had applied the wrong legal test and threshold, I make the following orders:
(a)Quashing the respondent’s decision requiring the PCC to reconsider the matter; and
(b)Directing that the Board must reconsider the PCC’s decision and must either accept or reject the recommendation by the PCC that the applicant’s competence should be assessed by it.
[151] The alternative relief sought, relating to the terms of the redirection, is not applicable given my findings.
Permanent name suppression
[152] On 15 June 2022, by consent, this Court made an interim order prohibiting publication of P’s name and/or identifying details, pending further order of the Court.
[153] P now seeks an order of permanent name suppression, regardless of the outcome of this judicial review application. P’s affidavit in support of the application for permanent suppression notes that reputation is of particular importance for their work as a psychologist.
[154] P also says that their forensic work and the neuropsychological assessments they undertake are dependent on referrals, from current or previous clients, psychiatrists and other health professionals, lawyers and, at times, from the courts directly. Those referrals depend on them maintaining a high reputation.
[155] P is concerned that publicity of their name or identity in this case will create a significant material risk of harming their reputation and, in turn, adversely affecting the source of work upon which they are reliant.
[156] P also notes a concern that publication of their name and details would create a risk of harm being caused to some of their clients.
[157] Ms Courtney refers to s 95(2) of the Act, which provides the Tribunal with the jurisdiction to make orders prohibiting publication of a practitioner’s name, even if the case were to reach a disciplinary proceeding status. The Tribunal only needs to be satisfied that it is desirable to make the orders sought having regard to the interests of any person, including the privacy of any complainant and to the public interest. The word “desirable” sets a low threshold by comparison with that generally applicable in the civil context.70
[158] That has been reflected in a number of High Court cases cited by the applicant, including ABC v Complaints Assessment Committee,71 ANG v A Professional Conduct
70 Johns v Director of Proceedings, above n 39, at [164], citing ABC v Complaints Assessment Committee [2012] NZHC 1901, [2012] NZAR 856 at [44].
71 ABC v Complaints Assessment Committee, above n 70, at [44].
Committee,72 Director of Proceedings v I,73 and most recently in XY v Professional Conduct Committee of Medical Council of New Zealand where Gendall J said:74
… it is well-established the threshold test for an order for name suppression in the medical practice disciplinary jurisdiction invokes a considerably lower threshold than the usual civil test. As it noted, the threshold test for suppression simply requires that, to order suppression the Tribunal needs to be “satisfied that it is desirable to do so”.
[159] Ms Courtney says given that position, if this matter were to proceed to the Tribunal, it would significantly undermine the applicant’s rights to seek and obtain name suppression if this Court did not make the order now sought.
[160] The Board does not oppose the order sought by the applicant and will abide the decision of the Court, but submits that any order of this Court should not impede the discretion of the Tribunal in the exercise of its powers under s 95(2) of the Act, in the event that a charge were to be laid before the Tribunal.
[161] Having regard to the submissions of both parties I accept that it is appropriate that an order be made in this Court permanently suppressing publication of P’s name and identifying details. I make this order under s 112 of the Act.
[162] I accept that, if a disciplinary charge against P were to be laid in the Tribunal, it will be a matter for the Tribunal whether it makes a non-publication order under s 95(2) of the Act.
Costs
[163] The applicant has succeeded on both causes of action and is entitled to costs. I expect counsel to be able to agree costs, but if they are unable to do so, they should file and serve memoranda within 15 working days of this judgment and I will decide the issue on the papers.
Gwyn J
72 ANG v A Professional Conduct Committee [2016] NZHC 2949 at [15].
73 Director of Proceedings v I [2004] NZAR 635 (HC) at [70]–[73].
74 XY v Professional Conduct Committee, above n 60, at [138] (footnotes omitted).
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