Psychologists Board v Geary
[2013] NZHC 1039
•10 May 2013
ORDER MADE SUPPRESSING PUBLICATION OF THE NAMES OF MS A AND ANY DETAILS THAT MIGHT IDENTIFY HER, INCLUDING THE NAME OF HER FORMER HUSBAND.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-000759 [2013] NZHC 1039
BETWEEN PSYCHOLOGISTS BOARD Applicant/Plaintiff
ANDIAN RUSSELL GEARY Respondent/Defendant
Hearing: 10 May 2013
Counsel: L J Taylor and E G Thomson for Applicant/Plaintiff
Respondent/Defendant in person (via telephone) Judgment: 10 May 2013
ORAL JUDGMENT OF COLLINS J
Introduction
[1] The issues I have to resolve are encapsulated in the following questions:
(1)Is a report prepared by a psychiatrist about a complainant who appeared as a witness before the Health Practitioners Disciplinary Tribunal (the Tribunal) subject to suppression orders made by the Tribunal?
(2)If so, should I issue an injunction to restrain Mr Geary from publishing and distributing that report?
PSYCHOLOGISTS BOARD V GEARY HC WN CIV-2013-485-000759 [10 May 2013]
Background
[2] Mr Geary was a registered psychologist. His name was removed from the Register of Psychologists on 21 December 2009 following a finding by the Tribunal on 16 October 2009 that he was guilty of professional misconduct. The Tribunal’s decision relating to both its finding that Mr Geary was guilty of professional misconduct and that his name be removed from the Register of Psychologists was
upheld by the High Court.1 An attempt by Mr Geary to appeal the High Court’s
judgment to the Court of Appeal was dismissed.2
[3] Mr Geary previously had experience with disciplinary proceedings. In 2005, the Psychologists Board, acting pursuant to the disciplinary jurisdiction previously conferred on the Psychologists Board by the Psychologists Act 1981,3 found Mr Geary guilty of charges that included allegations he had inappropriately disclosed information about a patient to the complainant, Ms A, who was also a patient of Mr Geary’s. The Psychologists Board decision was substantially upheld by the High Court when it determined Mr Geary’s appeal.4 On that occasion Mr Geary was fined.
[4] Following the first disciplinary proceedings initiated by Ms A, she complained that Mr Geary had engaged in conduct which this time involved him disclosing information about Ms A. This led to the disciplinary action that resulted in Mr Geary’s name being removed from the Register of Psychologists.
[5] The particulars of the charge that were determined by the Tribunal on
16 October 2009 included allegations Mr Geary had disclosed to Ms A’s former
husband highly sensitive and confidential information about Ms A, including the details of clinical notes and alleged sexual abuse inflicted on Ms A by her former
1 Geary v Professional Conduct Committee HC Wellington CIV-2009-485-2641, 22 July 2010.
2 Geary v Professional Conduct Committee HC Wellington CIV-2009-485-2641, 30 September
2010.
3 The Health Practitioners Disciplinary Tribunal was established by the Health Practitioners Competence Assurance Act 2003 and since 2004 has heard disciplinary charges against all registered health professionals, including psychologists.
4 Geary v Psychologists Board HC Wellington CIV-2005-485-1562, 28 May 2007.
husband and others. The charges against Mr Geary also included allegations he had provided confidential information about Ms A to the police.
[6] Prior to hearing Ms A’s second complaint the Tribunal made an order suppressing the publication of any details relating to the complainant. This order was made by the Chairperson of the Tribunal, Mr B Corkill QC, on 18 December
2008. In paragraph [6] of the decision of 16 October 2009, the Tribunal records:5
On 18 December 2008, the Tribunal made a permanent order preventing the publication of [Ms A’s] name and of any details which could identify her. In the course of the hearing, the Tribunal made an order in respect of any personal details of her circumstances, except as to the type of conduct described in the particulars of the charge, which could be referred to generically. ...
[7] One of the documents that was considered by the Tribunal was a report on Ms A that had been prepared by Dr MacVicar, a psychiatrist, who had prepared her report at the request of ACC. Ms A had made a number of annotations on Dr MacVicar’s report.
[8] On 14 August 2009 the Tribunal issued a summons to the New Zealand Police to obtain from them amongst other matters, the documents concerning Ms A which Mr Geary had given to the police.
[9] Since losing the disciplinary proceedings brought against him Mr Geary has made a number of allegations about the basis upon which the Tribunal reached its decision and about the accuracy and completeness of the documents presented by the police to the Tribunal. He is convinced that a version of the annotated report prepared by Dr MacVicar which he has now obtained from the police, was not subject to the suppression orders made by the Tribunal and that he is therefore able to publish and distribute that document.
[10] In a letter to the Tribunal dated 28 April 2013 Mr Geary said he intended to “copy and distribute” the annotated report prepared by Dr MacVicar. In subsequent emails and letters to the solicitors for the Psychologists Board Mr Geary has said,
amongst other things:
5 Geary Decision No. 255/Psy08/85P, 18 December 2008.
[He] will do whatever [he] can to expose this injustice.
[He] is not an impulsive or obsessive person, but [he is] very determined and will have [his] day even if that means upsetting a few people.
[He] will hold off [his] intention until Friday 10th May at 5.00pm.
Protecting and upholding the authority of the Tribunal
[11] There is no express statutory power conferred upon the Tribunal to enforce its own suppression orders in the circumstances of this case. The Tribunal does, however, have the power to punish those who commit a contempt “in the face of the Tribunal”. Clause 13(1)(c) of Schedule 1 of the Act provides:
(1) Every person commits an offence and is liable on summary conviction to a fine not exceeding $10,000 who—
...
(c) intentionally and without lawful excuse disobeys an order or direction of a member of the Tribunal in the course of any proceedings before the Tribunal.
[12] In addition, s 95(2)(d) of the Act authorises the Tribunal to issue orders prohibiting the publication of the name or any particulars of the affairs of any person. Every person commits an offence and is liable on summary conviction to a fine not exceeding $10,000 who contravenes an order made under s 95(2) of the Act.6
[13] Because the Tribunal lacks the statutory power to enforce its suppression orders after the conclusion of a proceeding before the Tribunal, the Psychologists Board has applied to the High Court for an injunction to restrain Mr Geary from “publishing and distributing” the annotated report about Ms A prepared by Dr MacVicar.
[14] The High Court’s inherent jurisdiction extends to upholding the authority of lower Courts and Tribunals. The following authorities explain the High Court’s
jurisdiction in the following way:
6 Health Practitioners Competence Assurance Act 2003, s 95(7).
(1)Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, in which Richardson J explained:7
... it is well established that the High Court has inherent jurisdiction to make any order necessary to enable it to act effectively even in respect of matters regulated by rules of Court so long as it does not contravene those rules. Under that inherent jurisdiction (and except as qualified by statute or statutory rule ...) the High Court has power to punish for contempt of its processes in order to enable it to act affectively [sic] as a Court. That the jurisdiction extends to the protection of the processes of inferior Courts is also well settled and it is sufficient for present purposes to refer to Attorney-General v Blundell [1942] NZLR 287.
(2) Samleung International Trading Co Ltd v Collector of
Customs, in which Blanchard J said:8
... if the High Court possesses inherent jurisdiction to do a thing which cannot be done by a District Court, then the High Court may use its powers in aid of the District Court.
[15] The Tribunal discharges judicial functions. It sits in public, administers oaths, has rules of procedure and, it can issue summonses, award costs, punish those who commit a contempt in the face of the Tribuanl, and its decisions can be appealed to the High Court and in exceptional cases the Court of Appeal and Supreme Court. Even if technically the Tribunal is not an inferior court it is a judicial body whose authority and functions may be protected by the High Court exercising its inherent
jurisdiction.9
[16] I have also concluded that for reasons of policy, the High Court’s inherent jurisdiction extends to issuing injunctions to prevent breaches of the Tribunal’s suppression orders because the Tribunal:
(1) acts to protect the health and safety of members of the public;10
7 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at
616.
8 Samleung International Trading Co Ltd v Collector of Customs [1994] 3 NZLR 285 (HC) at
290. See also Transport Accident Investigation Commission v Wellington District Court [2008] NZAR 595 (HC) at 51.
9 Refer Attorney-General v British Broadcasting Corporation [1981] AC 303.
10 Health Practitioners Competence Assurance Act 2003, s 3.
(2)acts in the public interest when it enforces standards required of health professionals;11 and
(3)its ability to perform its important public functions would be compromised if complainants were dissuaded from giving evidence before the Tribunal for fear that sensitive and confidential information about them could not be effectively suppressed.
Is there a serious question to be tried?
[17] I am satisfied that the annotated report about Ms A prepared by Dr MacVicar was the subject of the suppression orders made by the Tribunal and that unless I restrain Mr Geary publishing and distributing the report there is a serious risk that he will breach the Tribunal’s order, thereby undermining the authority and effectiveness of the Tribunal.
[18] Although it was not necessary for the Psychologists Board to rely on an action for breach of confidence, I am also satisfied the information contained in the annotated report prepared by Dr MacVicar has all of the characteristics of information that could found an action for breach of confidence if it were to be
published.12
[19] I have reached this conclusion because:
(1)The information in the report is highly sensitive and personal information about Ms A. It has all of the requisite characteristics of information that was supplied in confidence.
(2)The information was supplied to Dr MacVicar by Ms A during the course of a medical consultation. Ms A consented to the Tribunal accessing that information. In turn, Mr Geary had access to that
information for the purposes of conducting his case before the
11 Section 3.
12 Refer Coco v A N Clarke (Engineers) Ltd [1969] RPC 41 (Ch) at 47; Skids Programme
Management Ltd v McNeill [2013] 1 NZLR 1 (CA) at [76].
Tribunal. The limited basis upon which the report was made available to Mr Geary clearly suggests the information in Dr MacVicar’s annotated report was confidential.
(3)Mr Geary has made it clear that there is a real risk that unless restrained he will publish and distribute the annotated report prepared by Dr MacVicar.
(4)There is no overriding public interest that could possibly justify the publication and distribution of the report.
Does the balance of convenience favour the granting of an injunction?
[20] Mr Geary has told me in Court that he has no intention of breaching the Tribunal’s order, and that all he had threatened to do was release Dr MacVicar’s annotated report in order to bring matters to a head. Mr Geary’s assurances do, however, conflict with the emails and letters that I have referred to earlier in this judgment. I have therefore reached the conclusion that there is a real risk that Mr Geary will publish and distribute the annotated report by Dr MacVicar. In these circumstances I believe the balance of convenience favours the granting of an interim injunction.
Does the overall justice favour the granting of an interim injunction?
[21] I am satisfied the overall justice of this case favours the granting of an interim injunction. My reasons for reaching this conclusion are:
(1)At this juncture I can see no legitimate basis upon which Mr Geary can publish and distribute the confidential report prepared by Dr MacVicar about Ms A.
(2)There is a real risk that unless restrained by Court order, Mr Geary will publish and distribute the report.
Orders
[22] I therefore make the following orders:
(1)Mr Geary is prohibited until further order of the Court from copying, distributing or otherwise publishing a report on Ms A prepared by Dr Anne MacVicar dated 16 June 2003 or a copy of her report containing Ms A’s handwritten comments or from otherwise acting in breach of suppression orders made by the Health Practitioners Disciplinary Tribunal on 18 December 2008 and during the course of its hearing of charges against Mr Geary in October 2009.
(2)Suppressing publication of the names of Ms A and any details that might identify her including the name of her former husband.
(3)The Court file be sealed and not made available for inspection without further order of the Court.
Costs
[23] Costs are reserved.
D B Collins J
Solicitors:
Minter Ellison Rudd Watts, Wellington for Plaintiff
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