T v A Professional Conduct Committee

[2020] NZHC 1473

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002464

[2020] NZHC 1473

IN THE MATTER OF

An appeal under s 106(2) of the Health Practitioners Competence Assurance Act 2003

BETWEEN

T

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

On the Papers	At Auckland
Judgment:	2 June 2020
Addendum:	29 June 2020

ADDENDUM TO JUDGMENT OF POWELL J

This judgment was delivered by me on 29 June 2020 at 3.30 pm Registrar/Deputy Registrar

Date:

T v A PROFESSIONAL CONDUCT COMMITTEE [2020] NZHC 1473 [29 June 2020]

[1]    On 2 June 2020 I allowed an appeal against a finding of professional misconduct against the appellant and set aside the penalty imposed by the Heath Practitioners Disciplinary Tribunal.1

[2]    In the final paragraph of the judgment I requested the parties to confer as to whether there was agreement regarding the issue of name suppression which had been raised separately by the appellant.2

[3]    A joint memorandum has now been filed by the parties in which the respondent confirms it does not oppose permanent orders for non-publication of the appellant’s name and identifying details being made.

Discussion

[4]    Having heard the appeal and having read the joint memorandum, I am satisfied that permanent orders for non-publication of the appellant’s name and identifying particulars should be made.

[5]    As the parties have noted, s 95(2) of the Health Practitioners Competence Assurance Act 2003 provides that the Health Practitioners Disciplinary Tribunal may make an order prohibiting publication of the name, or any particulars of the affairs, of any person if it is “satisfied that it is desirable to do so”, after having “regard to the interests of any person (including, without limitation, the privacy of any complainant), and to the public interest”.3 Similarly, pursuant to s 112 of the Health Practitioners Competence Assurance Act 2003, on appeal this Court may prohibit publication of the name or particulars of the affairs of a health practitioner if in its opinion it is proper to do so. This is a lower threshold than the test otherwise applying in the civil jurisdiction.

[6]    In making the order I place special weight on the following factors identified by the parties:

1      T v A Professional Conduct Committee [2020] NZHC 1179.

2 At [34].

3      Similarly, pursuant to s 112 of the Health Practitioners Competence Assurance Act 2003, on appeal this Court may prohibit publication of the name or particulars of the affairs of a health practitioner if in its opinion it is proper to do so.

(a)Although the appellant breached the Code of Ethics for chiropractors, the public interest in knowing her identity is low given the charge of professional misconduct was found not to be established on appeal. Her conduct was found not to bring the chiropractic profession into disrepute and in any event, was not of such a nature that it would reach the disciplinary threshold.

(b)There was no criticism of the appellant’s clinical skills or of her conduct during professional interactions with the complainant. The appellant does not pose a risk of harm to her patients.

(c)The conduct which is the subject of this matter concerned the appellant’s personal, sexual relationship with the complainant. The details of this are personal in nature and if published, would risk causing humiliation and distress to the appellant.

(d)Publication of details of this matter also run the risk of unduly harming the appellant’s ability to return to New Zealand and practice as a chiropractor in the future (she is currently practising overseas), in that it may damage the relationship of trust and confidence with potential employers and patients. It is not unusual for patients to "Google" health practitioners. If the appellant’s identity is published in connection with this matter, details of the case would be easily found on the internet, including the Tribunal’s decision which was overturned.

(e)The appellant’s interests outweigh the public interest in this case. It is therefore desirable that permanent non-publication orders be granted.

Decision

[7]    The interim name suppression orders suppressing details of the appellant and the complainant’s names and all identifying particulars are made permanent.

Powell J