X v Director of Proceedings
[2014] NZHC 1798
•7 August 2014
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT. ORDER SUPPRESSING PUBLICATION OF PERSONAL HEALTH INFORMATION OF MRS X.
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2014-412-0010 [2014] NZHC 1798
BETWEEN DR X
Appellant
AND
THE DIRECTOR OF PROCEEDINGS Respondent
Hearing: 31 July 2014 Counsel:
A H Waalkens QC for Appellant
A L Martin and H Cook for RespondentJudgment:
7 August 2014
JUDGMENT OF SIMON FRANCE J
Introduction
[1] Dr X acknowledged his guilt before the New Zealand Health Practitioners Disciplinary Tribunal (the Tribunal) in relation to two charges of professional misconduct. The conduct in question involved intimacy with a patient on two occasions on the same day. The first occurred in his consulting rooms. The second, by arrangement, at her place of work. There was, however, no agreement as to what had happened so a hearing took place.
[2] At the end of the hearing convictions were entered. The most that needs to be said about the conduct is that it involved sexual intimacy short of intercourse. After hearing evidence from Dr X about the background to the offending and the various
matters that contributed to what the Tribunal accepted was out of character
DR X v DIRECTOR OF PROCEEDINGS [2014] NZHC 1798 [7 August 2014]
offending, the Tribunal imposed a fine of $25,000, and conditions on his practice which were to apply for three years.1
[3] The conditions are that:
(a) Dr X undergo various assessments, and undertake any courses of action consequently directed; and
(b)that Dr X only see female patients with a chaperone present, and that a notice to this effect be displayed at each of his work places.
[4] The Tribunal described the case as a very unusual one, and was satisfied these conditions would adequately protect public safety. The Tribunal accepted that there was a low risk of re-offending in light of the evidence about changes in Dr X, including his mental well-being.
[5] There remained the issue of permanent name suppression, which is the subject of this appeal.
[6] Dr X advanced his case for name suppression on cumulative bases pointing to the effect publicity would have on his own health and also on that of his wife, as well as the impact on her work situation. The submission was buttressed by reference to the Tribunal’s conclusion that there was a low risk of re-offending, and that the public safety component was well catered for.
[7] Concerning Dr X’s own position, it was clear that a combination of personal circumstances had led to a period of instability around the time of the offending. With psychiatric and other assistance he had made significant progress. He was still on medication but was considered well able to work, and generally had reached a
much improved place.
1 Re Dr X Decision 591/Med 13/258P, 23 December 2013.
[8] The concern, therefore, was the impact that publicity would have on him. The psychiatrist treating him had suggested it would cause “irreparable harm”. The Tribunal did not accept this. The support networks that Dr X now had in place to cope with the effects of publicity were noted. The Tribunal considered that whilst there would be some impact, the likely effects were not sufficient to make name suppression desirable, given the well known reasons why publication was the normal response.
[9] On appeal I see no reason to differ from this assessment. The claim of irreparable harm was surprising given the balance of the report. That there would be some impact was beyond dispute, but why it would be irreparable was unclear. The psychiatrist was offered the opportunity to expand on this, but did not do so in a way that supported the proposition.
[10] I agree with the Tribunal that Dr X’s circumstances, standing alone, were not such as to support a case for name suppression. My own view is that they fell some distance short.
[11] As for Mrs X, a number of matters were raised. She does voluntary work at an institution and considered her ability to do so would end if Dr X was not granted name suppression. It is unclear to me whether that was because she would consider it no longer possible, or because the institution would take that view. If the latter, there was no evidence to support the proposition. It simply seemed to be Mrs X’s impression.
[12] More relevantly, Mrs X suffers from a significant health condition. It is currently in remission, but the prime trigger for a relapse is stress. Whilst, objectively, it may be thought the worst is now over in terms of this incident (which occurred more than four years ago), I accept that publicity will add a new dimension. There was medical evidence before the Tribunal supporting name suppression for the sake of her health.
[13] The Tribunal’s resolution of this submission has some difficulties. The Tribunal concluded that the concerns about Mrs X could be addressed by granting name suppression to Mrs X. It is not entirely clear whether, in taking this step, the Tribunal had reached the view that Mrs X needed to be protected from the impact of publicity, or whether the order was more a case of just doing what it could whilst rejecting the sufficiency of her circumstances as a reason for suppression of her husband’s name. I do not mean to suggest the latter rationale, if it was adopted, was in any way improper. However, I do consider an order preventing publication only of Mrs X’s name is largely ineffective. If the Tribunal considered protection of Mrs X was necessary for health reasons, then name suppression for Dr X was the only realistic mechanism. That is why the underlying rationale for suppressing Mrs X’s name matters.
[14] Mr Martin submits that the evidence does not support a conclusion that Mrs X needed to be protected from the consequences of publishing Dr X’s name. Her condition is in remission, the effect on her work situation is unclear and it is part-time voluntary work in any case, and other consequences such as inevitable embarrassment are always unfortunate but are not usually seen as overcoming the imperatives behind publication.
[15] It is well established that the impact on family members can be a reason for name suppression – see B v R.2 I do not suggest the concerns here are as wide ranging as existed in that case, but on the other hand the statutory test applicable to this case is much less stringent than in criminal proceedings.3 My own assessment is that it would have been open to the Tribunal to suppress her husband’s name because of Mrs X’s circumstances, but that if deciding the question afresh I would not see those circumstances as sufficiently compelling to make suppression of Dr X desirable. Whilst that may have also been the Tribunal’s assessment, the reality to be addressed is that Mrs X has been granted name suppression, and there is no appeal
concerning that.
2 B(CA860/10) v R [2011] NZCA 331.
3 Section 95(2) of the Health Practitioners Competence Assurance Act 2003 empowers the Tribunal to suppress publication of the practitioner’s name if it is satisfied it is desirable to do so. As for the general principles applicable to this test see T v Director of Proceedings HC Christchurch CIV 2005-409-2244, 21 February 2006 at [33]–[42].
[16] Suppressing Mrs X’s name but not that of her partner, who is the “offender” and who has the same name; affords little protection to Mrs X because most people who know her will know she is Dr X’s spouse. Those who do not will not care, but the effect of publicity will not be greatly lessened by suppressing only her name. It is also quite difficult to give effect to the Tribunal’s decision. The order extends to her “identifying details”, but naming Dr X would be to identify her to pretty much everyone who knows her. Thus whilst the intent of the decision is to say Dr X can be named, doing so would breach the suppression ordered in respect of Mrs X. The
best solution to this is to suppress Dr X’s name.4
[17] There are aspects of this case that make a final outcome of name suppression less troubling than usual. The Tribunal considered it an unusual case and met the offending with only a fine, notwithstanding it involved sexual activity with a patient. That indicates the offending is at the less serious end of the spectrum. Further, the Tribunal is satisfied that the combination of conditions imposed adequately mitigates the risks for the future.
[18] The factors not satisfied if name suppression is ordered are the denunciation and deterrence components that stem from publicity, the general right of the public to know, and the specific right of Dr X’s patients to be able to make an informed choice.
[19] Concerning the first of those, it is sufficient to note that the penalty suggests this case is less serious than many others, and the unusual facts mean the outcome will have minimal precedent value. Concerning the public’s right to know, that is not absolute and in this case will need to yield to the circumstances of the people directly
involved in the case.
4 The preponderance of authority favours treating this appeal as one from the exercise of discretion. See Rowley v Commissioner of Inland Revenue [2011] NZSC 76 (2011) 25
NZTL 25, 438; N v PCL [2013] NZHC 3405; [2014] NZAR 350 at [42]–[50]. Mr Waalkens QC disputes this but was content to argue the appeal on that basis. In terms of the principles governing such appeals, I consider it was wrong to not suppress Dr X’s name having determined that Mrs X required protection from publicity.
[20] As for patients’ rights to know, the chaperone notice hints at a line of inquiry but what happens thereafter is less clear. At the hearing Dr X proffered acceptance of a condition that if a patient inquires as to whether he is the doctor with name suppression, he would answer accurately and provide further information if required. I inquired of Mr Waalkens QC if that remained the case, and was advised in the affirmative. Both parties agreed that I should impose the condition if I thought fit, rather than refer it back, and I will do so. The Tribunal’s conditions last for three years, so logically the same time limit should apply.
[21] I acknowledge there is an unsatisfactory element to this. First, not all patients will know to ask. Second, it produces the uncomfortable result that the knowledge has a partially public status, but there is then a prohibition on further dissemination. Generally, I consider such artificial situations should be avoided, but here it represents the best way of satisfying the competing interests.
[22] An alternative way in which some protection might have been given without creating the present dilemma would be to suppress the detail of the grounds relied on by Dr X as they relate to his wife. They could simply be referred to as “family circumstances”. If, however, it was intended that there be no public reference to Mrs X’s name, then for the reasons discussed suppression of Dr X’s name is the only outcome.
Conclusion
[23] The appeal is allowed.
[24] Dr X’s name and identifying particulars are suppressed subject to the continuation of the conditions set out in the Tribunal’s ruling and a further condition
that:
if asked by a patient, Dr X will confirm he is the doctor who obtained name suppression, and will otherwise provide the patient with appropriate information.
[25] Name suppression for Mrs X is no longer required, but arises by virtue of the orders concerning Dr X. Although this judgment is silent on the matter, the Tribunal ruling contains considerable detail about Mrs X. For the avoidance of doubt I confirm the Tribunal’s suppression orders concerning Mrs X’s condition, and her personal health information.
[26] Costs memoranda to be filed if required.
Solicitors:
Webb Farry Lawyers, Dunedin
Health and Disability Commissioner, Wellington
Simon France J
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