Wilson v Police
[2017] NZHC 239
•22 February 2017
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CRI-2017-485-000002
[2017] NZHC 239
BETWEEN NATASHIA DONNA WILSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 February 2017 Appearances:
R Stoop and C Stanley for Appellant STA Ellis for Respondent
Judgment:
22 February 2017
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am allowing Ms Wilson’s appeal from a decision of Judge Doyle delivered in the Hutt Valley District Court on 23 November 2016. In her decision, Judge Doyle found Ms Wilson had refused to permit a medical practitioner to take a blood specimen pursuant to s 73 of the Land Transport Act 1988 (the Act).1 Judge Doyle accordingly convicted Ms Wilson of breaching s 60(1)(c) of the Act.2
Evidence
[2] On 13 April 2016, at approximately 2.45 pm, Ms Wilson was involved in a motor vehicle accident on State Highway 2 near Lower Hutt. Constable Black, who
1 Police v Wilson [2016] NZDC 21782.
2 Failing or refusing to permit a blood specimen to be taken pursuant to s 73 of the Land Transport Act 1998. Maximum penalty is three months’ imprisonment or a fine not exceeding $4,500. The court must disqualify the person from holding or obtaining a driver’s licence for six months.
WILSON v NEW ZEALAND POLICE [2017] NZHC 239 [22 February 2017]
was on duty in Petone, was dispatched to the scene and found four vehicles had been involved in a “nose to tail collision”. It became apparent that a Suzuki Swift, driven by Ms Wilson, had collided into the rear of a Hyundai car which had in turn caused a knock-on accident involving two other vehicles in front of the Hyundai.
[3] Constable Black noted that Ms Wilson’s eyes were bloodshot. He also saw a full bottle of wine on the floor of Ms Wilson’s vehicle. Constable Black formed the view that Ms Wilson may have consumed alcohol. He radioed for another constable to escort Ms Wilson to hospital and request the taking of a blood specimen from her.
[4] Senior Constable Brough arrived at the scene and was briefed by Constable Black. Ms Wilson was taken to Hutt Hospital by ambulance and Senior Constable Brough travelled to that hospital’s Accident & Emergency Department (AED).
[5] When Ms Wilson was admitted to the AED she was assessed in a cubicle by Dr Kohli, an experienced registrar. Dr Kohli was informed Ms Wilson had been involved in a motor vehicle accident and was asked by Senior Constable Brough to take a blood specimen from Ms Wilson. This occurred at approximately 3.45 pm. Dr Kohli examined Ms Wilson who was “difficult to assess” because she appeared to be “agitated” and “distressed”.3 Dr Kohli formed the view that taking a blood specimen would not be prejudicial to Ms Wilson’s proper care or treatment. Dr Kohli informed Ms Wilson that the police had asked for a blood specimen to be taken to check her “alcohol level” and that she was allowed to decline “but if she did so it would probably go against her in Court at a later date”.4 Ms Wilson agreed to a blood specimen being taken. Ms Wilson’s consent was given close to 4 pm. Rather than take the blood specimen at that stage Dr Kohli went to a “hand over meeting” at 4 pm.
[6] Dr Kohli went to the hand over meeting because her shift was scheduled to end at 4.30 pm. Dr Kohli explained that a hand over meeting is always conducted towards the end of each shift, and that at a hand over meeting “… all the doctors in the department sit in one room … and outgoing doctors hand over the care, the
3 Notes of Evidence, 28 October 2016, at 3, lines 22-26.
4 Notes of Evidence at 4, lines 16-20.
responsibility of care, for their patients to the oncoming doctors…”.5 Dr Kohli said the purpose of a hand over meeting is so that the consultant in charge of the next shift is “aware of exactly what is going on in the department, who patients are, what’s likely to be coming and going so that they have an idea of how to manage the flow”.6
[7] Dr Kohli said in evidence that at the hand over meeting she transferred the care of Ms Wilson to Dr Makower, a consultant in charge of the next medical shift in the AED. After that hand over meeting Dr Kohli went back to the cubicle where Ms Wilson was either lying or sitting on a gurney. Dr Kohli’s evidence was that she “thought [she] would try and get [the] blood tests sent off”7 and that because Ms Wilson “had already agreed …to have [the] blood tests taken” Dr Kohli “thought [she would] go ahead and do that”.8 When Dr Kohli re-entered the cubicle she asked Ms Wilson again if she consented to the taking of a blood specimen. Ms Wilson gave her consent for the second time to Dr Kohli to take a blood specimen.
[8] In her evidence Dr Kohli said Dr Makower then came in and spoke to Ms Wilson about giving blood samples. Dr Kohli said that at that stage “things just started getting a little bit out of control”.9 Dr Kohli said Ms Wilson became “more agitated”, “non-directable and … very difficult to reason with”.10
[9] Dr Kohli’s evidence was substantially supported by Dr Makower’s recollection of events. He said he entered the cubicle because of the noise that was coming from the cubicle that “was disturbing the department”.11 Dr Makower said he was aware of Ms Wilson from the briefing he had received from Dr Kohli from the hand over meeting. When Dr Makower heard Ms Wilson making a noise he tried to assist at which point Ms Wilson became very abusive and uncooperative. Dr Makower was unaware that Ms Wilson had previously agreed (on two occasions) to give a blood specimen to Dr Kohli. When Dr Makower raised the issue of taking the blood
5 Notes of Evidence at 2, lines 18-21.
6 At 2, lines 25-27.
7 At 5, lines 14-15.
8 At 11, lines 9-10.
9 At 5, lines 24-25.
10 At 5, lines 29-30.
11 At 17, lines 27-28.
specimen Ms Wilson reacted very robustly. She told Dr Makower to “f… off”.12 At this point Dr Makower decided he wanted Ms Wilson out of the hospital. He asked the police and security personnel to remove Ms Wilson.
[10] Dr Makower also said that he started to complete a certificate prescribed by s 75 of the Act before approaching Ms Wilson. I explain s 75 of the Act in paragraph [15]. A certificate under s 75 of the Act is normally completed after a doctor has taken a blood specimen from a patient.
[11] Senior Constable Brough recalled Ms Wilson consenting to giving blood to a medical person (he thought Dr Kohli was a nurse) and that when Dr Makower entered the room and asked to take a blood specimen Ms Wilson became agitated, abusive and tried to get out of the hospital bed. He said Ms Wilson refused in no uncertain terms to submit to a blood specimen being taken by Dr Makower.
[12] After Ms Wilson refused Dr Makower’s request for a blood specimen she was escorted from the hospital. Dr Makower then wrote on the s 75 certificate that Ms Wilson had refused to permit a specimen of blood to be taken.
Law
[13] Section 60(1)(c) of the Act creates the offence of failing or refusing to permit a blood specimen to be taken by a medical practitioner pursuant to s 73 of the Act.
[14]Section 73 of the Act provides:
(1)A person who is under examination, care, or treatment in a hospital or doctor's surgery must permit a blood specimen to be taken from the person by—
(a)the medical practitioner who is in immediate charge of the examination, care, or treatment of the person; or
(b)another medical practitioner or a medical officer.
…
12 Notes of Evidence at 30, line 16.
(3)The medical practitioner who is in immediate charge of the examination, care, or treatment of the person in a hospital or doctor's surgery—
(a)may take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer; and
(b)must either take a blood specimen or cause a blood specimen to be taken by another medical practitioner or a medical officer, if an enforcement officer requests him or her to do so,—
whether or not the person has consented to the taking of the specimen and whether or not the person is capable of giving consent.
…
(5)Despite subsection (3), a blood specimen may be taken under any provision of this section only if the medical practitioner—
(a)has reasonable grounds to suspect that the person is in the hospital or doctor's surgery as a result of—
(i)an accident or incident involving a motor vehicle:
(ii)an injury or a medical condition arising subsequent to an accident or incident involving a motor vehicle; and
(b)has examined the person and is satisfied that the taking of the blood specimen would not be prejudicial to the person's proper care or treatment; and
(c)tells the person (unless the person is unconscious) that the blood specimen is being or was taken under this section for evidential purposes.
[15] Section 75 of the Act provides that any certificate produced in proceedings to which s 75 of the Act applies shall be sufficient evidence of the matters stated in the certificate, “in the absence of proof to the contrary”. Section 75 sets out the matters that are to be certified in a certificate signed by a medical practitioner pursuant to that section. The matters that are covered by a s 75 certificate include:
(1)that the person named in the certificate was in a hospital or doctor’s surgery;
(2)that the medical practitioner in the immediate charge of the examination, care or treatment of the person took a blood specimen or caused a blood specimen to be taken from that person;
(3)the medical practitioner had reasonable grounds to suspect that the person was in the hospital or doctor’s surgery as a result of a motor vehicle accident;
(4)the medical practitioner examined the person and was satisfied that the taking of a blood specimen would not be prejudicial to the person’s proper care or treatment;
(5)that the medical practitioner told the person that the blood specimen was to be taken under s 73 of the Act for evidential purposes; and
(6)that a specimen of venous blood was taken by the medical practitioner in accordance with the blood specimen collection procedures.
[16] A certificate issued under s 75 of the Act is not however admissible if the Court orders “not less than 14 days before the hearing” that the medical practitioner “who gave the certificate ought to appear as a witness at the hearing”.13
[17] A critical issue in this case is which doctor was “in immediate charge of the examination, care or treatment” of Ms Wilson. In R v Harrison the Court of Appeal explained:14
[24] … The medical practitioner who must form the requisite view that the person has been involved in an accident involving a motor vehicle, and must either take, or direct the taking of, a blood specimen, is “the” medical practitioner who is in “immediate charge of the examination, care, or treatment of the person”.
[25] The use of the word “immediate” is significant. It suggests both physical and temporal proximity. In our view the use of this word as a qualifier confirms that while other medical practitioners may be in charge of the treatment of that person in a hierarchical or official sense for hospital purposes, it is the medical practitioner attending upon the patient at the
13 Land Transport Act 1998, s 79.
14 R v Harrison [2015] NZCA 484.
relevant times who has the authority under s 73 to take the blood specimen. It is the person in that proximate relationship who must be satisfied of the reasonable grounds to suspect the person is in hospital as a result of an accident involving a motor vehicle under s 73(5)(a), who must undertake the examination of the patient and be satisfied following that examination that the taking of the blood specimen would not be prejudicial to the person’s proper care or treatment under s 73(5)(b), and who must advise the patient of the taking of the specimen under s 73(5)(c). Proximity to the patient is essential for the undertaking of all of these tasks.
[26] We also think it implicit in the section that there must exist a doctor/patient relationship between the medical practitioner and the patient. The section only operates when someone is in a hospital or doctor’s surgery. Moreover the section balances the power it creates to take the blood by placing someone in a therapeutic relationship with the patient in control of that process. This is the context for the prerequisite to the taking of blood that the doctor is satisfied the procedure will not prejudice the care or treatment of the patient.
District Court hearing
[18] In the District Court, Judge Doyle heard the evidence of Drs Kohli, Makower and Senior Constable Brough on 28 October 2016. She also received a statement of evidence from Constable Black and evidence from Ms Wilson’s partner who explained to the Court that Ms Wilson suffered from a bipolar disorder.
[19] After receiving submissions from defence counsel, Judge Doyle adjourned the hearing and invited the Police to file any submissions in response within ten days. The Police in due course filed a memorandum which stated:
1.The informant has received and read the defence submissions and associated case law (Q v Harrison CA93/215).
2.After hearing the evidence it is accepted that Dr Kohli did not hand over the defendant’s care or cause Dr Makower to take the blood sample as required by the legislation.
3.The informant is not in a position to argue the case as it appears to be virtually on all fours with the Court of Appeal decision the defence has referred to the Court.
[20] Because of administrative errors, the police memorandum was not made available to Judge Doyle before she delivered her judgment.
[21] In her decision Judge Doyle concluded that Dr Makower was the doctor in the immediate charge of Ms Wilson and that Ms Wilson’s refusal to provide a blood specimen to Dr Makower meant that Ms Wilson had breached s 60(1)(c) of the Act.
[22] After delivering her judgment, Judge Doyle received and dismissed an application to recall her judgment. That application was based on the fact that the police memorandum had not been made available to Judge Doyle before she delivered her judgment.
Appeal
Approach on appeal
[23] This appeal is brought pursuant to s 232 of the Criminal Procedure Act 2011. That section provides that an appeal court may allow an appeal against conviction if satisfied that, amongst other matters:
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[24]“Miscarriage of justice” is defined in subs 4 to mean:
… any error, irregularity, or occurrence in or in relation to or affecting the trial that —
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[25] In Wiley v R the Court of Appeal confirmed that s 232(4)(a) of the Criminal Procedure Act “focuses on an assessment of the potential risk of a different outcome”.15 Applying the statutory language in its terms, the Court must consider whether the identified error has created a real risk that the outcome of the trial was
15 Wiley v R [2016] NZCA 28 at [29].
affected in the sense there is a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong. If this real risk is identified, the appeal court must allow the appeal.
Appellant’s submissions
[26] Ms Stoop, senior counsel for Ms Wilson submitted her client’s refusal to give a blood specimen to Dr Makower was not a refusal that attracted legal liability under the Act. She submitted that Judge Doyle erred in her assessment of the evidence and application of the law to the facts in determining who the medical practitioner “in immediate charge” of Ms Wilson’s care was for the purposes of s 73 of the Act.
[27] Ms Stoop submitted that Dr Kohli was the medical practitioner “in immediate charge” of Ms Wilson during her time in the AED and not Dr Makower. Ms Stoop’s submission relied upon the following points:
(1)While Dr Makower may have become in charge of Ms Wilson in a “official sense” at the hand over meeting, Dr Kohli’s return to Ms Wilson’s bedside, having previously cared for Ms Wilson, meant she remained the practitioner who attended on Ms Wilson, at the relevant times.
(2)Judge Doyle placed too much weight on Dr Makower’s belief he was responsible for Ms Wilson’s care and the fact that he signed a certificate under s 75 of the Act.
(3)The administrative error that prevented Judge Doyle from considering the Police’ memorandum caused substantive unfairness to Ms Wilson and is a further reason why there has been a miscarriage of justice.
Respondent’s submissions
[28] Ms Ellis, counsel for the Police submitted Judge Doyle was correct in finding Dr Makower was the medical practitioner in “immediate charge” of Ms Wilson’s care at the time she refused to allow a blood specimen to be taken.
[29] Alternatively, Ms Ellis submitted that even if Judge Doyle erred when concluding Dr Makower was the medical practitioner in “immediate charge” of Ms Wilson, there was no miscarriage of justice because:
(1)The refusal to provide a blood specimen does not need to be made in response to a request from the medical practitioner who “is in immediate charge” in order to attract liability for the offence of refusing to give a blood specimen and can be in respect of another medical practitioner or a medical officer under s 73(1)(b) of the Act.
(2)Any initial consent to a request to provide a blood specimen was withdrawn by Ms Wilson before a blood specimen could be taken and therefore constituted a refusal to provide a blood specimen by Ms Wilson.
Analysis
[30] The key issue in this case is whether or not Dr Makower was the medical practitioner in “immediate charge” of the examination, care or treatment of Ms Wilson.
[31] As the Court of Appeal explained in Harrison, for a doctor to be in “immediate charge” of the examination, care or treatment of a patient, there must be both a physical and temporal proximity between the doctor and the person from whom the blood specimen is sought. It is the doctor in the immediate charge of the examination, care or treatment of the patient who must be satisfied on reasonable grounds that the person is in hospital or a doctor’s surgery as a result if a motor vehicle accident and who must conduct an examination of the patient and be satisfied following that examination that the taking of a blood specimen would not be prejudicial to the person’s proper care or treatment. The doctor in the immediate charge of the examination, care or treatment of the patient must also be the person who advises the patient that the blood specimen is to be taken for evidential purposes.16
16 Land Transport Act 1998, s 73(5).
[32] There are three reasons why I am satisfied Dr Kohli and not Dr Makower was the doctor in immediate charge of the examination, care or treatment of Ms Wilson.
[33] First, the evidence clearly establishes that Dr Kohli had reasonable grounds to suspect that Ms Wilson had been in a motor vehicle accident. Dr Kohli received the information which formed the foundation for her belief from the ambulance officers who brought Ms Wilson into the AED. The evidence also establishes that Dr Kohli examined Ms Wilson and formed the opinion that taking a blood specimen would not be prejudicial to Ms Wilson’s proper care and treatment. Dr Kohli is the doctor who explained to Ms Wilson that the blood specimen was to be taken for evidential purposes. The evidence also clearly establishes that Dr Kohli obtained Ms Wilson’s consent to take a blood specimen pursuant to s 73 of the Act on two occasions. It is significant that the second of these occasions was after the handover meeting when Dr Kohli returned to the cubicle to complete the task of taking a blood specimen from Ms Wilson. Dr Kohli did so because she regarded it as being part of her professional responsibility to complete the task she had started prior to the hand over meeting.
[34] Second, while Dr Makower may have had a degree of responsibility for the care of Ms Wilson in a “hierarchal or official sense for hospital purposes”17 there is no evidence he engaged in a therapeutic relationship with Ms Wilson. There is no evidence Dr Makower examined Ms Wilson or satisfied himself that taking a blood specimen would not be prejudicial to Ms Wilson’s proper care or treatment. Instead, Dr Makower’s role was to try and bring order to a disruptive state of affairs. When he entered the cubicle occupied by Ms Wilson he informed her about the need for a blood specimen to be taken without appreciating Ms Wilson had already consented, on two occasions, to Dr Kohli taking a blood specimen pursuant to s 73 of the Act. While Dr Makower cannot be criticised for trying to sort out what he considered to be an unsatisfactory scene, he did so without the benefit of the information that Dr Kohli had already acquired after examining and treating Ms Wilson, namely that she agreed to a blood specimen being taken. The fact that Dr Makower discharged Ms Wilson does not mean that he became involved with her examination, care or treatment. After having been told to “f… off” Dr Makower took immediate steps to have Ms Wilson
17 R v Harrison, above n 14, at [25].
removed from the hospital. He was not engaged in any form of examination, care or treatment of Ms Wilson.
[35] Ms Ellis submitted that even if Dr Kohli were the doctor with the immediate charge of the examination, care or treatment of Ms Wilson, there was no reason why Dr Makower could not also have had the immediate charge of the examination, care or treatment of Ms Wilson.
[36] I do not think it is necessary for me to decide if two or more doctors can have the immediate charge of the examination, care or treatment of a person in a hospital or doctor’s surgery. The reason for this is that, on the evidence, it is clear to me that Dr Makower never formed any therapeutic relationship with Ms Wilson. He did not examine, care or treat her.
[37] Third, it is highly doubtful that the certificate signed by Dr Makower was of assistance to the Police. The reasons for this are:
(1)The Police decided to have Dr Kohli and Dr Makower give evidence. In these circumstances s 79 of the Act would appear to override the presumption as to admissibility set out in s 75(1) of the Act.
(2)Section 75 applies where a blood specimen is actually taken. It does not on its face, apply in circumstances where a blood specimen is not taken.
(3)Even if the presumption in s 75(1) of the Act were engaged, Ms Wilson rebutted the presumption that Dr Makower was the doctor in immediate charge of her, for the reasons I have explained in paragraphs [33] to [34].
[38] I disagree with Ms Ellis’ submission that Ms Wilson was liable because she declined to give a specimen of blood to “another medical practitioner or a medical officer” as required under s 73(1)(b) of the Act. That subsection is only engaged where the medical practitioner with immediate charge of the person “causes”, that is to say,
asks or directs18 a second medical practitioner to take the blood specimen. If that were not the case there would be no reason for Parliament to have created the role of a medical practitioner in “immediate charge” of a patient. Under the interpretation advanced by Ms Ellis, any medical practitioner could at any time request a blood specimen from a patient under s 73 of the Act, without affording to the patient any of the protections set out in s 75(5) of the Act. That outcome would be contrary to the text and purpose of s 73 of the Act. In this case there is no evidence that Dr Kohli “caused” Dr Makower to take the blood specimen from Ms Wilson. Accordingly, s 73(1)(b) of the Act was not engaged.
[39] There is more force to Ms Ellis’ submission that by her conduct Ms Wilson withdrew the consent she had previously given to Dr Kohli to take a specimen of blood. The evidence on this point is however equivocal. There is no evidence from Dr Kohli to the effect that she understood Ms Wilson was refusing to allow her to take a blood specimen. The evidence appears to be that Ms Wilson did not want Dr Makower to take a blood specimen. Normally it would not be appropriate for a patient in Ms Wilson’s circumstances to choose which doctor should take a blood specimen. However, in view of the unusual facts of this case in which Ms Wilson had twice consented to Dr Kohli taking a blood specimen and where there is no evidence Dr Kohli believed Ms Wilson had revoked her consent for Dr Kohli to take a blood specimen, I believe any ambiguity in the evidence should be resolved in Ms Wilson’s favour.
Conclusion
[40]The appeal is allowed.
[41] The conviction entered against Ms Wilson in the Lower Hutt District Court for refusing to permit a specimen of blood to be taken under s 60(1)(c) of the Act is quashed.
D B Collins
18 R v Harrison, above n 14, at [24].
Solicitors:
Thomas Dewar, Sziranyi, Letts, Lower Hutt Luke Cunningham Clere, Wellington
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