Z v Dental Council of New Zealand HC Wellington CIV-2010-485-2249 [2011] NZHC 1861 (2 December 2011)

Last Updated: 25 January 2012

Judgment: 2 December 2011

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF APPELLANT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2010-485-2249}

IN THE MATTER OF an appeal pursuant to s 64 of the Dental Act

1988

BETWEEN Z Appellant

AND DENTAL COUNCIL OF NEW ZEALAND Respondent

Hearing: 19-20 September 2011

Appearances: A Waalkens QC and A L Credin for the appellant

B Stanaway for the respondent

Judgment: 2 December 2011

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Dr Z, is a dentist. In 2009 he appeared before the Dentists’ Disciplinary Tribunal (“the Tribunal”) on a charge brought by the Complaints Assessment Committee (“the CAC”). The charge related to events in January 2001. The charge alleged that Dr Z had his nurse sedate a patient, Ms KL, in his absence and whilst Ms KL was breastfeeding, and that in so doing had used twice the recommended maximum dose of the drug Hypnovel. In addition, and more seriously, the charge also alleged that Dr Z had caused Ms KL, whilst she was sedated, to put her hand on his exposed penis on two occasions, and that he had touched her breast. Similar allegations were made as regards two other patients of

_{Dr Z, Ms LM and Ms RP. In terms of the Tribunal’s disciplinary jurisdiction, the}

Z V DENTAL COUNCIL OF NEW ZEALAND HC WN CIV-2010-485-2249 2 December 2011

CAC was alleging that Dr Z had committed acts or omissions in the course of or associated with his practice of dentistry that were or could have been detrimental to the welfare of patients and/or that amounted to professional misconduct.

[2] The Tribunal did not uphold that part of the charge against Dr Z relating to Ms KL that he had administered twice the recommended maximum dose of Hypnovel. It did, however, find that the dose of Hypnovel Dr Z administered to Ms KL was unacceptably high. The Tribunal upheld the charge against Dr Z in respect of the other matters complained of relating to Ms KL, namely having a patient sedated in his absence, sedating a patient whilst she was breastfeeding and indecent touching, and recorded adverse findings accordingly. The Tribunal dismissed the charge as regards the two other patients.

[3] Dr Z now appeals against the adverse findings relating to Ms KL. Additionally, and whether or not he succeeds in that appeal, he also appeals against that part of the Tribunal’s penalty decision in which the Tribunal lifted orders of interim suppression made in Dr Z’s favour. He also asks that a condition of practise imposed on him by the Tribunal, namely that he have a chaperone for all consultation with female patients, be varied so as not to apply to emergency consultations. For the respondent, Mr Stanaway did not oppose Dr Z’s appeal on that, limited, ground.

[4] The major issue in this appeal relates to a phenomenon associated with the drug Hypnovel. As the Tribunal accepted, patients sedated by Hypnovel have been known to hallucinate. Some of those hallucinations have been of a sexual nature. Dr Z’s explanation for the indecencies alleged by Ms KL, and the two other patients, was that they were hallucinating. Given what he says is the strength of that possible explanation, Dr Z says the Tribunal was wrong to find he had touched Ms KL indecently.

Context

[5] This matter has a lengthy history.

[6] In 2002 Dr Z was tried by a jury in the District Court on charges of indecently assaulting a number of female patients whom he had sedated for the

purpose of treatment. Dr Z was acquitted on all charges. Following Dr Z’s acquittal, complaints were made to the respondent, the Dental Council of New Zealand (“the Council”) by each of Ms KL, Ms LM and Ms RP. A fourth woman, whose original complaint to the Police had not led to criminal charges, also made a complaint to the Council in respect of an alleged incident in 1984.

[7] Following an investigation, the CAC, acting under s 61(1) of the Dental Act

1988 (“the Act”), gave notice to Dr Z setting out the particulars of the grounds for the exercise of the Tribunal’s power in the form of a charge against him as regards three of those four complainants, namely Ms KL, Ms LM and Ms RP.

[8] The charge against Dr Z as regards Ms KL reads as follows:

Dr Z, Dentist of Christchurch, is charged as follows:

1. In the course of his treatment of his patient Ms KL on 3 January 2001, in Christchurch:
   

1.1 Administered four 7.5 mg tablets of the sedative drug Hypnovel prior to administering a local anaesthetic, being twice the recommended maximum dose; and

1.2 In administering the Hypnovel as particularised in Particular 1.1;

1.2.1 caused Ms [KL] to fall asleep in his waiting room, which room was accessible to the general public and, in so causing, showed a total lack of respect for Ms [KL]’s feelings; and/or

1.2.2 potentially endangered Ms [KL]’s wellbeing; and/or exposed Ms [KL] to the risk of undesirable side-effects or consequences, including:

while she was under sedation, inappropriately and with no clinical reason for doing so, on two occasions exposed his penis and then caused her right hand to touch or come into close contact with his penis, and on one occasion touched [Ms KL]’s right breast.

The conduct alleged in Particulars 1.1, 1.2, 1.2.1 and 1.2.2, when each Particular is considered separately or two or more Particulars are considered cumulatively amount to an act or omission in the course of or associated with the practice of dentistry that was or could have been detrimental to the welfare of the patient and or which amounted to professional misconduct.

[9] Similar allegations were made as regards each of Ms LM and Ms RP in that sedating drugs (Valium and Hypnovel respectively) were alleged to have been administered in excess of recommended maximum doses and that sexual indecency

occurred. Dr Z was also charged as regards Ms LM in that he administered Valium in inappropriate circumstances, including with no nurse or third party present.

[10] As the Tribunal puts it in its decision under appeal, “the charge alleges that Dr Z excessively sedated and sexually abused three female patients while treating them”.1

[11] Dr Z challenged the laying of that charge against him. He did so on the ground that – as he had been found not guilty in criminal proceedings on criminal indecency charges with respect to essentially the same allegations – to lay a disciplinary charge was contrary to the rule against double jeopardy and was an abuse of process. In July 2008, the Supreme Court dismissed Dr Z’s challenge to decisions of the High Court and the Court of Appeal, which, in general terms, upheld the bringing of the charge against Dr Z.

[12] Following that decision, the Tribunal heard the charge against Dr Z in late

November and early December 2009. It handed down its substantive decision on

3 April 2010. As indicated, it upheld parts of the charge as it related to Ms KL, but dismissed the charge as it related to Ms LM and Ms RP. After further submissions, it rendered its penalty decision on 20 October 2010.

[13] By way of explanation I note that because these matters pre-date the Health Practitioners Competence Assurance Act 2003, they fell to be decided by the Tribunal under the terms of the Dental Act 1988 (“the Act”). This was, in fact, the last case heard by the Tribunal. Dr Z originally filed his appeal against the CAC as respondent. Before me it was accepted that the Council could be respondent, although Mr Waalkens for Dr Z did not agree that the CAC was an incorrect respondent. To the extent necessary, there is a consent order varying the name of the respondent accordingly. There is also, by consent, an order under s 64 of the Act extending the time for the commencement of this appeal.

The Tribunal’s substantive decision

[14] The Tribunal began its substantive decision by discussing relevant legal principles relating to the burden and standard of proof, the implications of s 54(1) of

1 Dental Council of New Zealand Decision No 02/DC08/0IC, 3 April 2010 at [3].

the Dental Act and the two-stage approach involved in making findings of professional misconduct, and questions of credibility and propensity. There is no particular challenge to that part of the Tribunal’s decision.

[15] The Tribunal then discussed two aspects of the charges that had been laid:

(a) First, as regards the charge relating to the amount of drug administered, the Tribunal concluded that even if it was not established that the amount of Hypnovel administered was in excess of the maximum recommended dose, provided the amount alleged was established to have been administered, that part of the charge that related to that drug having been administered inappropriately could nevertheless be established. In other words, and in the case of Ms KL, the reference in Particular 1.2 to “administering Hypnovel as particularised in Particular 1.1” is a reference to administering “four

7.5 mg tablets”, not to administering “twice the maximum dose”.

There is no challenge to that finding.

(b) Second, and as regards the Particulars relating to Ms KL, Particular

1.2.2 only referred specifically to Ms KL’s wellbeing having been endangered in the sense of the alleged indecent act. Notwithstanding that, the Tribunal decided it could consider that Particular on the basis of evidence that it had heard relating to Ms KL having been sedated by the Dr Z’s nurse acting alone and whilst Ms KL was breastfeeding. Dr Z challenges that decision.

[16] The Tribunal then went on to consider the Particulars of the charge relating to

Ms KL.

[17] It first determined the events of the relevant day. Dr Z’s nurse, Ms C, in his absence – he had not yet arrived at his surgery – administered four 7.5 mg tablets of Hypnovel at 9.05am. Between 9.35 and 9.45am Dr Z and Ms C took Ms KL to the dentist’s chair where Dr Z administered a local anaesthetic. Dr Z then waited for the sedative and anaesthetic to take sufficient effect to allow treatment to begin. At

around 10.20am Ms KL alleged indecency had occurred, and Ms KL’s mother was

telephoned at 10.23am.

[18] It is important to note that during this time Dr Z did not perform any dental procedure on Ms KL, other than some preliminary steps involving the placement of a prop in Ms KL’s mouth.

[19] The Tribunal summarised the core narrative involving Ms KL more specifically as follows:

(a) Ms KL alleged that Dr Z had taken her hand and placed it on his exposed penis.

(b) Ms KL said that she “began to come out of the sedative when I felt a warm sensation in my hand”. She suspected that this was Dr Z’s penis, but does not recall how her hand came to be there.

(c) Ms KL said that, at that point, she was aware and was trying to catch Dr Z out. She said that Ms C then left the room and Dr Z had placed her hand on his penis again. Ms KL stated a number of times that Dr Z touched her right breast. Ms KL was not clear as to when during the sequence of events the touching of her breast occurred.

(d) She confronted Dr Z immediately after the second contact between her hand and his penis. The parties did not remember the exact words Ms KL used at this stage, (and many of the words of most parties later), nor were they recorded.

(e) Ms KL then got up out of the chair. She and Dr Z agreed that she did this by herself. She stated that it was at about this time that she momentarily saw Dr Z’s penis. Ms KL was unable to say that it was indeed his penis, but was adamant that she had seen a flash of flesh in the groin area. Ms KL stated that Dr Z said words to the effect that drugs can make a person believe she is being sexually assaulted. Ms KL stated that, as she was getting out of the chair, the nurse was

not present at that stage and that Dr Z immediately went into the other room to wash his hands.

(f) Ms C said she had responded to noise in the surgery. As she arrived Ms KL was getting out of the chair. She saw Dr Z standing by the entrance to the sterilising room. She heard swearing but did not immediately know what had happened.

(g) Dr Z denied that he twice placed Ms KL’s right hand on his exposed

penis or that he touched her right breast in any way.

(h) Of events more generally, Dr Z said that after assisting Ms KL from the waiting room into the chair he placed a prop in the left hand side of Ms KL’s mouth with some difficulty. While administering the local anaesthetic on the right hand lower region of Ms KL’s mouth, she became very upset. Both Dr Z and Ms C calmed Ms KL down. Dr Z then repositioned the prop to the right hand side of her mouth, again with some difficulty. The remaining injections of local anaesthetic were placed on the left hand side.

(i) Whilst Ms KL was sedated awaiting treatment, Dr Z described carrying out a number of routine desk tasks, monitoring Ms KL from time to time as he did so. He considered that her sedation was proceeding satisfactorily. Ms C returned to the dental chair from time to time. Dr Z reports that Ms C was engaged on the telephone from

10.00am until 10.15am.

(j) Dr Z stated that at some stage he removed the mouth prop from the right hand side of Ms KL’s mouth and placed it on the left. As he did so, Ms KL “suddenly woke and expressed anger and rage and was trying to say something”. Ms KL threw her arms about and struck Dr Z on the forehead. He says he stood up from his stool and moved to the vicinity of the sterilizing room door to avoid being hit again. He signalled Ms C to come in to the surgery, although it appears that she was already on her way. Dr Z said that Ms KL had got herself out

of the chair and was propped against the wall. Dr Z stated that Ms C

removed the prop from Ms KL’s mouth. Ms C did not recall that.

[20] Other than as regards the fundamental disagreement as to whether or not Dr Z had, in fact, placed Ms KL’s hand on his penis on two occasions and touched her breast, and certain details of events immediately following Ms KL’s initial allegation, that sequence of events was not challenged in this appeal.

[21] Against that background, the Tribunal discussed each of the Particulars of the charge against Dr Z as regards Ms KL, and recorded its findings. I now summarise those findings briefly. They are, as challenged by Dr Z on this appeal, discussed in more detail later in this judgment:

(a) Particular 1.1: Administering of Hypnovel at twice maximum dose

There was no dispute that four 7.5 mg tablets of Hypnovel had been administered by Dr Z, through his nurse, to Ms KL. The Particular that that dose was twice the maximum recommended dose was not established as the Tribunal found that there was no maximum recommended dose. Having said that, the Tribunal recorded its findings that the dose given to Ms KL was unacceptably high.

(b) Particular 1.2.1: Administering Hypnovel so as to cause Ms KL to fall asleep in the waiting room showed a total lack of respect for Ms KL’s feelings and/or dignity

Whilst the Tribunal found that it was not best practice to allow this to happen, it did not consider that this showed a “total lack” of respect for Ms KL’s feelings or her dignity. The Tribunal also noted that this was not a matter of particular concern to Ms KL. Therefore Particular

1.2.1 was not proved either.

(c) Particular 1.2.2: Administering sedative in the absence of Dr Z

There was no doubt that Ms C, Dr Z’s nurse, administered Hypnovel

to Ms KL whilst Dr Z was not at the surgery. He did not arrive until

15 minutes later. The Tribunal found that, even if remote, there was a potential risk to Ms KL in the Hypnovel being administered without

Dr Z being present, particularly considering the unacceptably high level of sedative given. It found that part of the Particular proven.

(d) Particular 1.2.2: Administering Hypnovel while breastfeeding

The Tribunal found, based on evidence, that an ingredient of Hypnovel, Medezalan, can pass into breast milk. Dr Z agreed that if he had known Ms KL was breastfeeding he would not have administered Hypnovel to her, or would only have done so on terms that she did not breastfeed for a stipulated period after sedation and that smaller doses should be used. The Tribunal found that a potential risk to a baby was necessarily a potential risk to the wellbeing of the mother, and that Particular 1.2.2 was therefore established in that respect also.

(e) Particular 1.2.2: Indecent touching

The Tribunal found, having assessed the inherent likelihood of Ms KL’s allegation being true (by reference to the accuracy of her recollection, opportunity and credibility), and the possible explanation of hallucination:

(i) that the phenomenon of sexual hallucination under sedation by

Hypnovel did occur;

(ii) but that – in a passage to which Mr Waalkens paid particular attention:2

... the Tribunal finds it unlikely that Ms [KL] was suffering a sexual hallucination. While there is a possibility that Ms [KL]’s profile and the high dosage may have increased the chance of hallucination, the Tribunal considers this only raises the likelihood from extremely unlikely to slightly less unlikely. In the Tribunal’s view this is insufficient to conclude that hallucination was a possibility in this instance;

and that:

In summary, the Tribunal considers that despite the serious nature of this allegation and the resultant need for very strong evidence, the CAC has proved this

2 At 195 and 206.

particular. Although Dr [Z] denies that the touching took place the Tribunal considers that the strength of Ms [KL]’s testimony as well as the evidence about the setting, and the timeframe, particularly in relation to the telephone calls made outweighs his evidence on the issue. The Tribunal considers that the explanations offered as an alternative of hallucination and emergence delirium are not sufficient for the Tribunal to conclude otherwise.

[22] The Tribunal then considered the Particulars of charge as they related to each of Ms LM and Ms RP. The Tribunal found the Particulars relating to the administration of Hypnovel in excess of the maximum or recommended dose not to be proven in either case, for the same reason as regards its decision on the equivalent charge for Ms KL, namely that there was no relevant standard at the time. As to the charge of administering Valium to Ms KL in inappropriate circumstances, the Tribunal was not satisfied that the factual element was established and dismissed that charge. As regards the allegations of indecent touching involving Ms LM and Ms RP, the Tribunal paid particular attention to the fact that neither of these complainants were sure what had actually happened, and found that those allegations had not been established. Mr Waalkens, for Dr Z, argued that it was difficult to see how the Tribunal could reject the explanation of hallucination in Ms KL’s case, and in effect accept it for Ms LM and Ms RP. I acknowledge that the Tribunal’s conclusions as regards Ms LM and Ms RP were not particularly elegantly expressed. At the same time, I think the answer to Mr Waalkens’ criticism of the Tribunal’s decision in this regard is simply that, as already noted, both Ms LM and Ms RP expressed a degree of uncertainty about what in fact had happened to them, which uncertainty Ms KL did not share. It is by reference to Ms LM and Ms RP’s uncertainties that, by my assessment, the Tribunal concluded that it was not satisfied that the indecency alleged had occurred, and made its decision accordingly. I therefore reject that element of Dr Z’s challenge to the Tribunal’s decision.

The Tribunal’s penalty decision

[23] The Tribunal ordered that Dr Z was to: (a) be suspended for nine months

(b) for a period of three years following the end of the suspension, practise subject to conditions of not administering sedation in any form to patients and ensuring that a chaperone or third person was present at all consultations and at all times, including emergencies, with female patients; and

(c) undertake counselling.

[24] In addition, the Tribunal ordered that Dr Z be censured, pay costs and that name suppression be lifted. The interim order of suppression was suspended for one month. During that time, Dr Z made application to the High Court and an interim order suppressing his name was extended until the determination of this appeal.

Case on appeal

[25] The grounds upon which Dr Z brings this appeal can be summarised as follows:

(a) Indecent touching: The finding of the Tribunal was wrong, unreasonable and unreliable. The Tribunal had failed to consider adequately the onus of proof and the obligation on the prosecution to produce satisfactory evidence to exclude hallucination on the part of Ms KL as a possible explanation for the allegation. Dr Z challenges aspects of the Tribunal’s reasoning and finding as regards opportunity and credibility. He directs the most significant part of his challenge to the way in which the Tribunal assessed and dealt with the possible explanation for what Dr Z accepted was Ms KL’s truthful recollection of what she thought had happened, namely hallucination under the effect of a very large dose of Hypnovel.

(b) Sedation in Dr Z’s absence and whilst Ms KL was pregnant: The Tribunal was wrong to find against Dr Z as regards these matters. First, and perhaps most importantly, he had not been properly charged in that regard. Moreover, on a proper consideration of the facts adverse findings were not called for.

(c) Penalty: On the most important element of penalty, namely name suppression, Dr Z argues, in what Mr Stanaway accepted were detailed submissions not put before the Tribunal, that to publish Dr Z’s name would wrongly deprive Dr Z of the benefit of the permanent suppression order made in his favour in the District Court as regards the criminal proceedings. Further, the Tribunal had been wrong to reject submissions made to it as to a variety of other reasons why name suppression should not be lifted.

The nature of this appeal

[26] The appeal against the substantive decision of the Tribunal is by way of re- hearing. The principles outlined in Austin, Nichols apply.3 Pursuant to those principles I must form my own decision on the matters at issue and the weight I accord to the decision of the Tribunal is a matter of judgment for me. As the Chief Justice observed:4

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court’s opinion is different from the conclusion of the Tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[27] When applying the Austin, Nichols principles it is also important to bear in mind this observation of the Chief Justice when speaking of both general appeals on the record below and de novo appeals:5

In either case, the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellate court considers the appealed decision is wrong that it is justified in interfering with it.

[28] Differing emphasis was placed by Mr Waalkens for Dr Z and by

Mr Stanaway for the respondent on aspects of the decision in Austin, Nichols. This

_{was particularly so as regards the significance for me of the Tribunal’s assessments}

3 _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

4 _{At [16].}

5 At [16]

of credibility, of the weight to be accorded the testimony of the expert witness and of the significance of testimony put before the Tribunal on the phenomenon of sexual hallucination under sedation, particularly involving Hypnovel. In that context, I note the following observations from Austin, Nichols on the question of technical

expertise and credibility respectively:6

The appeal Court may or may not find the reasoning of the Tribunal persuasive on its own terms. The Tribunal may have a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case, the appeal Court may rightly hesitate to conclude that findings of fact, or fact and degree, are wrong. It may take the view that there is no basis for rejecting the reasoning of the Tribunal appealed from and that its decision should stand. The extent of the consideration an appeal Court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment.

...

The appeal Court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important.

[29] As regards an appeal against an expert Tribunal exercising professional disciplinary responsibilities, Mr Waalkens referred to the decision of the High Court in J v Director of Proceedings where the Court observed:7

While respect will be accorded to the opinion of the expert Tribunal especially in relation to issues falling within their area of professional expertise this Court must form its own opinion of the case over which it has full jurisdiction.

[30] With reference to these matters, Mr Waalkens for Dr Z made two general submissions relating to credibility issues which it is appropriate to consider at the outset.

[31] First, he submitted that, in general terms and particularly as regards the evidence of Ms KL, the Commission had no particular advantage as there were no great issues of credibility. Dr Z accepted that Ms KL honestly believed that she had been indecently touched by Dr Z and had given truthful evidence based on that

_{honest, but mistaken, belief. Whilst I acknowledge the gist of the point made to me}

6 _{At [5].}

7 J v Director of Proceedings HC Auckland CIV-2006-404-2188, 17 October 2006 at [34].

by Mr Waalkens, I do not accept it. To do so would, in effect, exclude an assessment of Ms KL’s credibility as regards the central issue in the trial, namely whether or not the indecent touching actually occurred as she alleged. The possibility that her allegation may have been occasioned by an hallucination cannot have that effect. Somewhat surprisingly – at least as best as I can tell from the transcript of the hearing before the Tribunal – that possible explanation was not put to Ms KL. Mr Stanaway did not make anything of that there, or before me. I think it would have gone without saying, given her participation in Dr Z’s criminal trial, that Ms KL gave her evidence knowing of Dr Z’s reliance on that possible explanation.

[32] I therefore conclude that the Tribunal did have a material advantage over me in assessing Ms KL’s evidence.

[33] I also think the Tribunal had an advantage in assessing the credibility and – perhaps more generally – the appropriate weight to be placed on, the evidence of the experts from having heard and seen those experts giving their evidence. An important part of Mr Stanaway’s challenge to evidence given by Dr Z’s expert, Dr Holden, was based on Dr Holden’s credibility as an expert witness. I also think the Tribunal had a similar advantage in assessing the credibility of, and the weight to be given to, the evidence of the experts called by the CAC, Drs Syme and Kruger, from having seen and heard them give their evidence.

[34] Secondly, Mr Waalkens submitted that I was as well placed as the Tribunal to consider and assess the significance of the evidence put before it, as regards the possibility of hallucination being the explanation of Ms KL’s complaint. With respect, I do not accept that proposition. The Tribunal is an expert professional body dealing with a phenomenon which occurs within its area of expertise – dentistry. I therefore consider that this is a further advantage the Tribunal has over me. That particular advantage in my view goes to its ability to assess the significance and weight of the scientific literature put before it. That adds to the advantage it has in assessing the credibility of, and weight to be given to, the evidence of the expert witnesses relating to the significance of the phenomenon of hallucination for the charges against Dr Z.

[35] At the same time, and notwithstanding those findings, I also acknowledge that – as is made very clear by Austin, Nichols – my task is to consider the Tribunal’s decision in light of all the evidence before it and the submissions I have heard, and to come to my own decision on the issues that have been placed before me.

[36] Secondly, Mr Waalkens argued that the Tribunal made an adverse finding as regards Dr Z’s credibility and that that finding was not sustainable. I disagree.

[37] The Tribunal expressed itself in the following terms:

The Tribunal did not have major problems with Dr [Z]’s credibility generally. However, the Tribunal considered in the face of Ms [KL]’s evidence Dr [Z]’s evidence was less compelling. The Tribunal considered he was unwilling to concede things that were obvious if they were potentially adverse to him.

[38] The Tribunal cited two examples of this:

(a) First, in his criminal trial, Dr Z had accepted that very high doses of sedative had been used and that the use of those high doses made hallucinations more likely. Under cross-examination before the Tribunal, the Tribunal considered that Dr Z had been hesitant to admit the doses were high, as the level of the doses now constituted an element of the charge against him.

(b) The second matter involved Dr Z’s answers to questions by Mr Stanaway as to whether or not the dental chair could easily be moved from the head of a patient, to the patient’s right. The matter was significant because the alleged indecent touching would have to have involved the dental chair being moved by Dr Z in that manner. Dr Z at first said that the chair could not be moved that way on a number of occasions, and explained why that was the case. Under pressure during cross-examination, he eventually acknowledged that in fact the chair could easily be moved in that way. His explanation for his change in position was that the question had not been asked of him in the context of the administration of intravenous IV sedation. The Tribunal concluded:

The Tribunal considers that regardless of the procedure being carried out either the dentist’s chair could move position easily or it could not, and so the answer to the question must be straight forward. It was very obvious to the Tribunal from its inspection of the premises that the dentist’s chair could be moved in that fashion, even though the current patient’s chair was slightly further to the right than the previous chair.

[39] Having read the transcript of the proceedings, and having paid particular attention to the relevant cross-examination of Dr Z, I agree with the Tribunal’s assessment. In particular, I do not think that the transcript of Mr Stanaway’s cross- examination of Dr Z relating to the ease or otherwise of moving the dental chair supports Mr Waalkens’ proposition that Mr Stanaway and Dr Z were clearly, on that point, at cross purposes. Rather, in my view, having received some very direct negative answers to the question as to whether or not he could move the chair around from the head of the patient to the right hand side of the patient “never mind the circumstances of how it will occur”, Dr Z was then confronted with the fact that he could move the chair around to administer drugs intravenously. In my view, he attempted to explain away the inconsistency by asserting that he did not understand he was being asked the question of the movability of the chair generally, but only if he was operating at the head of the patient when his instrument tray would impede a move to the right hand side. Given the very general way in which the earlier questions were put by Mr Stanaway, I see no reason to conclude that the Tribunal was wrong to reach the conclusion it did. Moreover, I agree with that conclusion.

Dr Z’s appeal as regards the indecency particular

Dr Z’s case in the round

[40] For Dr Z, Mr Waalkens’ general proposition was that the charge of indecent touching by Ms KL was a remarkable allegation. Dr Z’s dental surgery was small, a nurse was present at the time and she was coming and going from the surgery throughout the period during which the alleged event occurred. Hypnovel was a powerful sedative and an extremely high dose had been administered to Ms KL. There was expert evidence and scientific literature establishing a clear likelihood that Ms KL was hallucinating when she perceived that Dr Z had placed her hand on his penis on two occasions. There was, therefore, little opportunity for the alleged offending, and a persuasive explanation for these allegations. The Tribunal had

therefore been wrong to accept that Ms KL’s complaint was proven to the high standard required and, in that, not to accept Dr Z’s evidence that he had not touched her in the manner alleged and that Ms KL was most likely hallucinating. Mr Waalkens developed that general argument by reference to criticisms of the way in which the Tribunal had approached the question of the onus of proof, of its assessment of opportunity and especially of the way it had assessed the alternative explanation of hallucination. I will now consider each of those criticisms in turn.

Onus of proof

[41] As clarified by the Supreme Court in Z v CAC,8 the Tribunal was required to apply the civil standard of proof, that is the balance of probabilities – bearing in mind that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should the evidence be before the Court concludes that the allegation is established on the balance of probabilities. In delivering judgment for the majority, McGrath J adopted the following “classic” passage of Dixon J in

Briginshaw v Briginshaw:9

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite graduations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

[42] Having regard, in particular, to English authority, the majority in Z concluded that there was a single civil standard, the balance of probabilities, which was to be applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. The rule was long established, sound in principle

_{and continued to apply to civil proceedings in New Zealand. Further, there was no}

8 _{Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.}

9 At [98].

support for making an exception to the flexible application of the civil standard to cover disciplinary proceedings, such as those here against Dr Z.

[43] Whilst Mr Waalkens acknowledged that the Tribunal correctly directed itself on these questions of onus and standard of proof, he submitted that the Tribunal had failed to adequately apply the relevant principles. In particular, he submitted that it was for the CAC to exclude to the satisfaction of the Tribunal that hallucination on the part of Ms KL “could not have been an explanation”. Not having made an adverse credibility finding about Dr Z’s evidence generally, it could not reject his denial that that touching never occurred.

[44] I note first that the Tribunal was required to be satisfied on the flexible, balance of probability, standard that, as alleged by Ms KL, Dr Z had placed her hand on his penis. The Tribunal acknowledged that hallucination was a possible explanation for that allegation. The Tribunal did not, in my view, have to exclude that possibility. Rather, notwithstanding that possibility, it nevertheless had to be satisfied to an appropriately high standard that an hallucination had not occurred here. Thus, in the context of the criminal standard of proof and where the ground for a positive defence or an exculpatory explanation is laid by the defence, what the Crown must do is establish in the jury’s mind that it is not a reasonable possibility that the facts which would support that defence or exculpatory explanation existed. Here the Tribunal had to be satisfied in the context of the flexibly applied balance of probabilities test that Ms KL’s allegations were true, notwithstanding the possibility that an hallucination might have occurred. I am satisfied that that is the way the Tribunal approached its task. I also consider that, in reaching the conclusions that it did, the Tribunal clearly accepted Ms KL’s evidence and not that of Dr Z. Reaching that conclusion necessarily involved rejecting Dr Z’s denial that those events had not occurred.

Opportunity

[45] The Tribunal concluded, having considered the setting for the alleged offending provided by Dr Z’s dental room, that there was sufficient opportunity for the alleged indecent touching to have taken place. Dr Z’s case had been that it was highly unlikely that he would have had opportunity to offend in this way given the

smallness of his dental room and the continuing presence of Ms C in close proximity. Based on those general propositions, Dr Z criticised the Tribunal for failing to take account of the evidence of Ms C that her comings and goings from his reception area were random and could be unexpected. Similarly, whilst Dr Z acknowledged that it was theoretically possible for the offending to have occurred given the setting and timeframe, the Tribunal erred in using that finding to reach its overall conclusion. I reject those criticisms of the Tribunal’s decision for the following reasons.

[46] In my view, the Tribunal was not wrong in relying on this evidence in the way it did. The Tribunal’s analysis of the relevant evidence can be summarised as follows:

(a) Although the surgery was small, Police evidence, confirmed by Dr Z under pressure in cross-examination, was that Dr Z could easily move his dental chair from the position in which he usually operated, at the patient’s head, to the patient’s right hand side, where he would need to have been for the alleged touching to occur;

(b) The Tribunal, with the considerable benefit of a site visit and on the basis of Police evidence, concluded that whilst Ms C was seated at her desk in the reception area she could not see the patient’s chair in the surgery; and

(c) A log of some of the telephone calls Ms C made whilst sitting at the reception desk between 9.47am, shortly after Ms KL was helped to the dental chair according to Dr Z, and 10.23am, when Ms KL’s mother was called, was consistent with Ms KL’s evidence that under sedation she had seen Ms C in the surgery area and with there being a sufficient period of time during which Ms C would have been at her desk for there to have been an opportunity for Dr Z to act as alleged.

[47] The significance of that evidence was, as the Tribunal concluded, that there was an opportunity to offend and that Ms KL’s version of events was possible. Those conclusions were only part of the Tribunal’s reasoning to reach its overall conclusion that the alleged touching had occurred notwithstanding Dr Z’s denial.

That is not, in my view, an error on the part of the Tribunal and I agree with its use of the evidence in that way.

Hallucination

[48] The principle focus of Dr Z’s challenge to the findings of the Tribunal was that – given the evidence as to the possibility that Ms KL had hallucinated that Dr Z had placed her hand on his penis and touched her breast – it was not open to the Tribunal to be satisfied to a sufficiently high standard on the balance of probabilities that that indecent touching had actually occurred. For Dr Z, Mr Waalkens advanced a number of separate limbs to that argument. Before considering those particular arguments, it is helpful to say something about Hypnovel, sedation, and the question of hallucination and the evidence before the Tribunal on these matters.

[49] The Tribunal received evidence from three expert witnesses on these matters: Drs Syme and Kruger, called by the CAC; and Dr Holden, called by Dr Z, as he had been at Dr Z’s criminal trial. The experts all gave similar evidence on matters relating to Hypnovel and sedation generally. Hypnovel, a benzodiazepine, is a commonly used sedative drug in dentistry. Hypnovel may be administered orally in pill form, as Dr Z did in Ms KL’s case, or intravenously. The doses of Hypnovel administered by Dr Z to Ms KL and Ms RP, and of Valium to Ms LM, were very high. They were outside the range of doses that any of the experts would themselves administer, irrespective of the fact that there would not appear to have been a maximum recommended dose for the oral use of Hypnovel in sedation at the time.

[50] In considering issues relating to sedation generally, the experts distinguished between conscious sedation and deep sedation or general anaesthesia. In conscious sedation, the possibility of communication with a patient is, or at least should be, maintained. Greater intervention, such as to maintain airways, is not required. In deep sedation or general anaesthesia, a patient is unconscious. Additional medical support is required. Dr Z intended to consciously sedate his patients. He had neither the training nor equipment to safely sedate them deeply.

[51] The experts all acknowledged the reality of the phenomenon of hallucination as associated with the use of Hypnovel – and other drugs – to sedate. Beyond that,

they differed significantly, Drs Syme and Kruger on the one hand, Dr Holden on the other. Those differences extended not only to their understanding of the phenomenon, but also its incidence, the relationship between the incidence of that phenomenon and the amount of drugs administered, the quality of the literature relating to those matters and a variety of other specific matters. Drs Syme and Kruger distinguished between dreams on the one hand and hallucination on the other. A patient who dreams knows, when conscious, that it was only a dream. A patient who hallucinates thinks, when conscious, that it was real. In general terms, Drs Syme and Kruger considered that Hypnovel induced sexual hallucinations were very rare and that there was no evidence of a positive relationship between the amount of Hypnovel administered and the incidence of hallucination. Neither Dr Syme nor Dr Kruger expressed a direct view on whether or not Ms KL had hallucinated. Dr Syme did say that, in his opinion, it was beyond reasonable chance that there would be three claims about hallucination from one dentist. Both Drs Syme and Kruger acknowledge that hallucination was a possible explanation for Ms KL’s complaint, although an unlikely one.

[52] On the other hand, Dr Holden made no distinction between dreams and hallucinations. He considered that sexual hallucination as a result of the administration of sedative drugs, including Hypnovel, was not rare, that it was under-reported, and that there was a positive relationship between the amount of the drug administered and the incidence of hallucination. For Dr Holden, the fact that Dr Z had administered very large doses of Hypnovel made it more likely that his patients would have such hallucinations. Dr Holden considered that there were a “number of pointers” in the evidence that Ms KL may well have suffered from an hallucination and that the likelihood of that could not be excluded.

[53] I think it is also appropriate to observe at this point that in my view the Tribunal preferred the evidence of Drs Syme and Kruger to that of Dr Holden. Certainly, the Tribunal reached similar conclusions to the former, and not to the latter. Moreover, and on the important question in my mind of the difference between dreams and hallucinations, the Tribunal went to some length to distinguish the two, and in so doing explicitly rejected Dr Holden’s approach that they were, in fact, the same. Although not a matter raised on appeal, in my view that is very much an area in which the Tribunal’s expertise, and its advantage in having seen and heard

the witnesses, gives it a considerable advantage over me. It is not an area in which I

would, therefore, lightly take a different approach.

[54] Again, having carefully considered the transcript of the hearing and of the closing addresses, I also prefer the evidence of Drs Syme and Kruger. I note, in particular, that I think Mr Stanaway made some telling criticisms of Dr Holden’s conduct as a witness, particularly where Dr Holden did not disclose that in one of the five cases where he had appeared as an expert witness for dentists facing allegations of a similar nature, and an explanation of hallucination had been put forward, there had been a conviction. He, in my view quite wrongly – given his status as an expert witness – also expressed a view as to the correctness of a conviction. Moreover, given what I consider to be the quite obvious status of Diana Brahams as something of an “advocate” of the phenomenon of hallucination, as reflected in the content and tone of the letters she wrote to The Lancet, he somewhat surprisingly failed to accept that those letters could carry little objective value for the Court.

[55] I turn now to Dr Z’s specific criticisms of the way the Tribunal responded to the evidence – particularly from Dr Kruger and as found in a range of dental literature put to the expert witnesses – relating to the possibility of hallucination. I will do so in terms of the submissions Mr Waalkens for Dr Z made as regards the Tribunal’s findings on the questions of Ms K’s level of consciousness, the quality of the literature relating to the phenomenon of hallucination associated with the use of sedatives and other drugs, the incidence of such hallucination, whether the incidence of such hallucination was related to the quantity of drug administered, the association of certain stimuli with that phenomenon and the significance of an individual patient’s nervous disposition for that phenomenon. Before doing so, however, I repeat the comments I have already made as to the considerable advantage I consider the Tribunal had, by reason of its opportunity to hear and observe the witnesses, and its own specialist expertise as regards these matters, when compared to me considering these matters in this appeal by way of re-hearing.

Ms KL’s level of consciousness

[56] The Tribunal concluded that Ms KL was sufficiently conscious at the time immediately before, during and immediately after the alleged incident to have an

accurate recall of events and that therefore it was highly unlikely she was hallucinating at the time of the touching. Thus, the Tribunal found that although Ms KL was sedated at the time of the alleged touching, she was conscious and aware, and was not in the kind of altered state consistent with hallucination.

[57] For Dr Z, Mr Waalkens argued that the Tribunal was wrong to reach those conclusions about Ms KL by reference to:

(a) her likely state of sedation, given the very high dose of the drug

Hypnovel;

(b) her own evidence that she was feeling dreamy at the time of the

alleged incident and that she was “coming in and out” of sedation; and

(c) the fact that, whilst she could recall certain events that did occur, she could not recall others.

[58] In the relevant section of its decision, the Tribunal matches Ms KL’s recall of what was going on around her with events as confirmed by Ms C and Dr Z himself and other evidence. That is, Ms KL recalled Ms C making phone calls, as had indeed happened, and observed her coming and going from the surgery room, as again happened. Ms C also recalled Ms KL’s eyes following her. Similarly, having immediately confronted Dr Z, Ms KL was comparatively lucid, telling him not to wash his hands and flicking up his apron, both of which events Dr Z recalls. At the same time, the Tribunal assessed the nature of Ms KL’s evidence as regards the alleged touching, namely that she remembered the first time Dr Z put her hands on his penis, the nurse coming into the room and Dr Z replacing her hand on the dental chair, that she then, in effect, did not complain so as to wait to see whether he would do it again, which he in fact did. In my view, the Tribunal essentially concluded that it was unlikely that that type of evidence could be attributed to an hallucination, as the evidence was of a conscious endeavour to satisfy herself as to what in fact was happening. Moreover, I think Ms KL’s evidence is consistent with the evidence that, under sedation, patients do remember traumatic events, whilst they may not remember other aspects of what happened during the relevant period. These were specific memories that had nothing to do with the alleged sexual touching.

[59] I would not necessarily express it – as the Tribunal did at one point – that Ms KL appeared to have a high level of consciousness and awareness immediately before and during the incidents. But her level of consciousness, the consistency between her recollection and matters objectively confirmed, and the nature of the evidence she gave as to the alleged events themselves, mean that I am not persuaded that the Tribunal was wrong to reach the conclusions summarised at [56]. Moreover, I think the question of whether or not she may have been hallucinating at the time has to be considered not only by reference to her evidence, but also by reference to evidence as to the occurrence and incidence of hallucination as an alternative explanation to what Dr Z accepted was her honest recollection of the events she considered had occurred.

Quality of literature

[60] For Dr Z, Mr Waalkens put to Drs Syme and Kruger, and to Dr Holden, extracts from a number of articles and other written materials relating to the phenomenon of hallucinations, and sexual hallucinations in particular, caused by or associated with sedative and other drugs, including Hypnovel. That material comprised:

(a) an article by J W Dundee “Further Data on Sexual Fantasies During Benzodiazepine Sedation”, which appeared in the Digest of the Society for Advancement of Anaesthesia in Dentistry (SAAD Digest) in July 1989;

(b) an article by A Reyes-Guerra “Sexual Abuse under Dental

Anaesthesia”, which appeared in the SAAD Digest in April 1994;

(c) two letters to the editor written by a Diana Brahams, which appeared in The Lancet, Volume 335 at 157 and 403 respectively;

(d) an article by M Fields “Intravenous Sedation: The Risk to the Dentist”, which appeared in the “A Personal View” section of the British Dental Journal in July 1990;

(e) an article by R Strickland and J Butterworth “Sexual Dreaming During Anaesthesia – Early Case Histories (1849-1888) of the Phenomenon”, which appeared in Anaesthesiology 2007 at 1232;

(f) a review article by B Balasubramaniam and G Park “Sexual Hallucinations During and After Sedation and Anaesthesia”, which appeared in Anaesthesia 2003 Volume 58, at 549; and

(g) an article by K Leslie and others “Dreaming During Anaesthesia in

Patients at High Risk of Awareness”, which appeared in Anaesthesia,

2005 Volume 60, at 239.

[61] The Tribunal treated that material as being in evidence before it.

[62] For Dr Z, Mr Waalkens criticised the Tribunal’s response to that material.

[63] The Tribunal said that it had “some concerns about the overall quality of the articles presented” and that, for whatever reason, whether due to under-reporting – as Dr Holden suggested, or rarity, as Drs Syme and Kruger suggested, there was a “paucity of quality information on the issues”. As the Tribunal noted, Dr Holden had acknowledged that the literature was of “low-level scientific value”. The Tribunal concluded that it had to work with the literature that was available, but that did not mean that the literature should be elevated in relevance and importance merely because little else was available, unless its value merited it. It was Mr Waalkens’ argument that that conclusion of low overall quality was unfair and unreasonable. I do not accept that criticism.

[64] In my view, the Tribunal itself very carefully reviewed the literature presented. Dr Holden himself had acknowledged that it was of low-level scientific value. In evidence he did not comment in any great detail on the articles, although he acknowledged familiarity with the Dundee article, and he assessed the literature as generally supporting the reality of this phenomenon.

[65] When extracts from those articles were put in more detail to Drs Syme and

Kruger, they expressed a range of criticisms of the material, including the fact that a

lot of the information presented was anecdotal and case-based, rather than being based on scientifically conducted surveys.

[66] Mr Waalkens also emphasised the fact that the quality of the literature reflected difficulties in reporting, that is, there was likely to be under-reporting of such incidents because of factors of embarrassment and the like. Whilst Dr Holden expressed that opinion, neither of Drs Syme nor Kruger considered that under-reporting had been established. In any event, the Tribunal acknowledged the possibility of under-reporting.

[67] In my view, the Tribunal competently assessed the quality of literature available and agreed that it had to work with it, notwithstanding its limitations. In many ways, that was the view Dr Holden himself had expressed. It acknowledged, for example, that the Balasubramaniam article had been published in the reputable publication Anaesthesia, but – no doubt relying on its own expertise in this area – said the same could not be said for the SAAD Digest. Put very simply, I am not persuaded that the Tribunal’s assessment of the quality of the material provided to it was wrong and – although with no particular expertise in this area – having reviewed it myself I agree with its conclusion. Certainly, the Tribunal was aware of the very clear message that came from much of the material presented, namely that dentists administering sedative drugs, including Hypnovel, should ensure that they had a “chaperone” or other person with them at all times, not only – as Dr Kruger said – for their own protection, but also for that of the patient.

[68] After the trial, Mr Waalkens became aware of an article in the ANZCA (Association of New Zealand College of Anaesthetists) a bulletin of December 2009 entitled “Anaesthetists warned over patients in sexual hallucinations”. This alert related particularly to the incidence of sexual hallucinations when the drug Propofol, which is a different drug to Hypnovel, was being used. Somewhat unusually, the Tribunal agreed to consider that article after the hearing, as recorded in its decision

of 3 February 2010.10 Mr Waalkens criticised the Tribunal for not paying greater

attention to that article. Although not mentioned in its decision, I think it is clear from the decision to admit the article, and the terms of that decision, that the

10 Dental Council of New Zealand Decision No 01/Den08/01C, 3 February 2010.

Tribunal had read the article and considered it. That it was not explicitly mentioned in its final decision is not, to my mind, especially material.

Incidence

[69] Mr Waalkens also criticised the Tribunal’s conclusion that the incidence of sexual hallucination under the influence of sedative drugs including Hypnovel was rare.

[70] The Tribunal acknowledged the potential significance of the evidence of incidence, as the higher the reported incidence of hallucinations of a sexual nature during conscious sedation, the more possible it was that Ms KL’s experience was as a result of this. Therefore, and as the Tribunal accepted, it was important to canvass the issue. The Tribunal in my view paid considerable attention to the question of incidence. It considered the documentary material that addressed the question of incidence. Moreover, it considered the material very carefully. The Balasubramaniam article appeared to express the view that the incidence of relevant hallucinations was between one and three per cent. It based the one per cent on a study it referred to, by Lichfield. It would appear to have based the three per cent on the Dundee article. As the Tribunal noted, Balasubramaniam’s reliance on the Dundee article for the three per cent figure is a simple error; Dundee reported – as relevant – 10 cases out of 3,000, which is 0.33 per cent, and referred to a number of other definite incidents of allegations of sexual assault which could not have happened and which therefore were to be attributed to hallucination. The Lichfield article, as analysed by Dundee, referred to 1.3 per cent of some 2,470 patients who reported hallucinations. Yet, as Mr Waalkens himself acknowledged in the course of cross-examination of Dr Holden, that study had not identified the percentage of those hallucinations which were sexual.

[71] In my view, Mr Waalken’s criticisms of the Tribunal’s analysis and assessment of the issue of incidence cannot be sustained. Moreover, and as the Tribunal acknowledged, its conclusion as to incidence was supported by the experience of the expert witnesses themselves. That is, the expert witnesses did not report any material experience with allegations of sexual touching or reported hallucinations.

[72] For Dr Z, Mr Waalkens also criticised the Tribunal’s observation that the under-reporting theory did not help Dr Z, as it would apply to all practitioners administering sedation, including him. In my view here, in terms of possible incidence of hallucination, the Tribunal was contrasting the experience of Drs Syme, Kruger and Holden with that of Dr Z. In other words, if under-reporting is a phenomenon, then the incidents of such allegations acknowledged by Dr Z reflect that under-reporting and so normalise, as it were, a comparison between his experience and that of the other dental experts who gave evidence, and indeed of the members of the Tribunal itself. I agree with the Tribunal’s conclusion therefore that the under-reporting theory was not particularly helpful to Dr Z.

Dose dependence

[73] An important part of Dr Z’s case, particularly in terms of Dr Holden’s evidence, was Dr Holden’s opinion that it was shown in the literature that, in effect, the greater the dosage of the drug, the more likely it was for an hallucination to occur. The Tribunal concluded that it found it “possible that a link might exist between the level of dosage and hallucinations”. It could not put it any higher than that. Mr Waalkens criticised that conclusion. He referred to the Balasubramaniam article, which in turn cited the Lichfield study of psychological side effects generally, in support of its conclusion that those were “dose related”. The Dundee article also expressed a similar view where it noted – in its one in 200 incidence report – that those were young patients exposed to high doses, although it did not make any comparative assessment of that frequency.

[74] In my view, those two references do not provide any more support for the proposition than that which was recognised by the Tribunal. I note further that, in my view, Dr Kruger’s evidence, particularly in cross-examination, was very persuasive on this point. He said, in response to questions from Mr Waalkens on this topic:

I have to assure you that I have looked long and hard for data that supports that sexual hallucinations are dose dependent. I have more papers here than you have presented. Most of them don’t even mention it. But I don’t find this as support for that at all.

And again:

Q And in terms of publications, there are no publications that say that this hallucination effect is not dose related, you've not found a publication that says it’s not dose dependent, have you?

A No, I have not found a publication that could actually with authority make any statement on the dose relatedness of this side effect. In fact of the papers that I read of which, as I said to you before, there are many dozens, it was rare for me to find a paper that even included sexual hallucinations as a side effect. There are many many, there are thousands of papers on side effects of benzodiazepines, there are only a handful that refers to sexual hallucinations. In those papers there are usually case reports. Those case reports are reported without the full data set and therefore from that there is no dose relationship that can be concluded. I’m not trying to be difficult, I have looked for this long and hard and honestly to find if there is anything to support that and I could not find it. Although I found some evidence which has not been allowed.

[75] Mr Waalkens also submitted that, as a matter of logic, Dr Holden had to be correct when he said that in the case of mood-modifying drugs, the more drug you give, the more mood modifications you are going to have. As Dr Holden acknowledged, however, he is not a pharmacologist, but a dentist who sedates. I prefer Dr Kruger’s evidence on this point, as did the Tribunal. It simply cannot be argued, as Mr Waalkens did in his written submissions, that Dr Kruger is “plainly wrong”. I am not persuaded by that submission as to logic: it could equally be argued as a matter of “logic” that the greater the use of sedative drugs, the higher the amnesiac effect would be, so the less likely patients would be to report anything at all as having occurred during their sedation.

Stimuli

[76] Dr Z argued that the possibility of Ms KL having hallucinated was increased by the proximity of relevant stimuli. That is, the literature had drawn possible connections between stimuli, such as the insertion of a dental sucker or an oral endoscopy with hallucinations of, for example, oral sex. The suggestion was that Dr Z’s actions in removing the prop from Ms KL’s mouth, which he says he did immediately before she accused him of having indecently touched her, may have “stimulated” the hallucination. Alternatively, that hallucination may have been stimulated by her touching dental cords, which had a soft and lumpy texture. On

appeal Mr Waalkens produced those dental cords and asked me to touch them, which

I did.

[77] The Tribunal rejected the proposition that the repositioning of the mouth prop was a catalyst for an hallucination. It considered that Dr Holden’s evidence that the positioning of the prop was a significantly stimulating experience was satisfactorily refuted by Dr Syme’s evidence that positioning or repositioning of a prop was not a significantly traumatic experience at all. The Tribunal also rejected the proposition that touching cords may have induced an hallucination. When that proposition had been put to Ms KL, she had emphatically answered that what she felt had felt nothing like the cords. The Tribunal further concluded that, to the extent the literature supported this proposition, it was not strong. Dundee had referred to stimuli as a possible association. The Reyes-Guerra article, which the Tribunal considered did not merit much weight, suggested such an association, but provided no reference to the research on which that suggestion was based.

[78] I do not disagree with any aspect of the Tribunal’s assessment of this issue.

Nervous disposition

[79] There was some evidence in the literature that women suffered from hallucinations, fantasies and dreaming more than men, and that patients with higher anxiety levels, or higher levels of nervousness, were in turn more susceptible to the occurrence of this phenomenon. The Tribunal accepted that. It would also appear that Ms KL was nervous about treatment, although there was no evidence to suggest she was nervous generally. The Tribunal concluded that all that meant that Ms KL was perhaps slightly more likely to experience an hallucination whilst sedated than were other persons. Based on the evidence overall, however, and in particular the rarity of hallucination as an event in and of itself, the Tribunal did not consider that this factor added to the likelihood of an hallucination being the source of Ms KL’s complaint. Dr Z criticised the Tribunal’s approach on that matter. He said that there was no basis for the Tribunal to reach the conclusion it had, and to do so was “tantamount to speculating and offending the requirement for the prosecution to carry the onus of proof”.

[80] I reject that criticism. Here, as throughout its discussion on the question of hallucination, the Tribunal was assessing whether, on all the evidence it had heard – bearing in mind the CAC’s onus of proof and the standard of proof – it was satisfied to a sufficiently high standard that, as alleged by Ms KL, Dr Z had indecently touched her. Taken overall, and notwithstanding what it acknowledged was the possibility of hallucination under sedation by Hypnovel, it concluded that it was. It therefore excluded, to the necessary extent, the likelihood of an hallucination having occurred.

Conclusion on hallucination as a possible explanation

[81] Overall, therefore, I am not persuaded that the Tribunal erred in its treatment of the possibility of hallucination. Moreover, having, as I have said, carefully reviewed the Tribunal’s decision, and in particular the articles put before it, I consider that its conclusion was correct.

[82] In expressing that conclusion, the Tribunal considered – as already noted – that the evidence was “insufficient to conclude that hallucination was a possibility in this instance”. Mr Waalkens criticised that conclusion as he said it was inconsistent with the Tribunal’s own assessment that hallucination was a possibility in these circumstances. I acknowledge that criticism, but consider it is a criticism of language rather than of substance. In my view, and fairly obviously, when the Tribunal expressed itself in that way it was using the word “possibility” somewhat loosely, as is perhaps not uncommon. The reference to hallucination as a “possibility” is, in my view, in substance a reference to whether or not hallucination was a sufficiently possible or probable explanation so as to prevent the Tribunal being satisfied to the necessary high standard. I do not think this shows any error of reasoning or logic.

[83] I therefore reject Dr Z’s appeal against the Tribunal’s finding that he had on two occasions exposed his penis and then caused Ms KL’s right hand to touch or come into close contact with his penis and that on one occasion he had touched Ms KL’s right breast. I now turn to the Tribunal’s “well-being” findings.

Dr Z’s appeal as regards the other wellbeing particulars - Administration of sedative in Dr Z’s absence and administration of sedative while Ms KL breastfeeding

[84] The Tribunal found these particulars of the charge relating to Dr Z endangering Ms KL’s wellbeing proved. That is, the Tribunal concluded that Dr Z, by having Ms C administer a sedative in his absence, endangered Ms KL’s wellbeing, as he did by administering that sedative to her whilst she was breastfeeding.

[85] Dr Z’s principal challenge, by my assessment, to these findings was a legal one: namely, that the way in which the charge had been laid against him precluded the Tribunal reaching conclusions in those terms because the charge itself had not been particularised in that way. That is, there was no reference in the particulars of charge as they related to Ms KL to either of these matters. Dr Z was entitled to know the precise way in which he was being accused of having endangered his patient’s wellbeing, and the way the charge had been laid against him did not do that as regards the findings the Tribunal had purported to make.

[86] If the hearing against Dr Z had proceeded simply on the basis of the charge as laid and, without prior notice to Dr Z the charge had been particularised by reference to the administration of sedative in his absence and the fact that Ms KL was breast- feeding, then Dr Z might have had something to complain about. That was, however, not the case. At an earlier point in the long history of this matter Dr Z had objected to briefs of evidence filed by the CAC which formed the basis of the CAC’s assertion that “included” (see Particular 1.2.2) within the ways in which Ms KL’s wellbeing had potentially been endangered was not only the indecent touching, but also these matters of administration of sedative in Dr Z’s absence and whilst Ms KL

was breastfeeding. In its decision finding that evidence admissible as relevant,11

which it summarised as being with respect to “whether the drugs administered create a harm to infant (breastfeeding)” and “administration of tablets when Dr [K] was not on the premises – adequate?”, the Tribunal concluded that any material that referred in any way to their wellbeing, as viewed in its wider sense, must be relevant and therefore admissible as the charge ultimately revolved around the wellbeing of the

_{three patients in question. In my view, Dr Z was therefore clearly on notice that}

11 Dental Council of New Zealand Decision No 01Dec08/01C, 10 November 2009 at 21.

these two aspects of his treatment, as possibly adversely impacting on his patient’s wellbeing, were before the Tribunal and therefore able to be the basis of an adverse finding. Furthermore, that was the basis upon which the hearing was conducted. If the CAC had sought a clarificatory amendment to the charges, I consider there would have been no prejudice to Dr Z in the Tribunal granting that amendment. In my view Dr Z cannot now complain about the jurisdictional basis of the findings reached.

[87] Nor, in my view, are any of the relatively mild criticisms of the particular findings that Mr Waalkens advanced justified. I think it almost goes without saying that administering a sedative to a patient when the responsible medical professional is not on the premises potentially endangers the wellbeing of a patient. Similarly, given that Dr Z himself acknowledged he would not have used Hypnovel to sedate Ms KL if he had known she was breastfeeding, his failure to make any inquiry as to that matter is sufficient to also constitute conduct that had a potential to endanger her wellbeing.

[88] I therefore uphold the Tribunal’s findings as regards these matters as well.

[89] I turn now to the question of name suppression.

Name suppression

[90] In its penalty decision of 20 October 2010, and on the question of name suppression, the Tribunal balanced the important considerations of openness and transparency against Dr Z’s private interests that might justify the relatively unusual decision to permanently suppress his name. They noted in particular that lifting the suppression orders would remove any suspicion that might have fallen on Christchurch dental practitioners in general. The Tribunal decided by a majority that the suppression order should be lifted.

[91] The reason for the minority’s view was the significance of the suppression orders made in the District Court in the criminal proceedings against Dr Z. The legal member of the Tribunal considered that the suppression order should be made permanent because to do otherwise “may compromise the integrity of the previous District Court suppression order”. The majority considered the two sets of

proceedings as being quite separate one from another, and therefore the existence of the District Court suppression order as regards the criminal proceedings could not be the decisive factor when it came to whether or not permanent suppression should be granted as regards the disciplinary proceedings.

[92] As I have already recorded, Mr Stanaway acknowledged that I have had the benefit of more comprehensive submissions on this matter than did the Tribunal.

[93] In my view, the inevitable effect of lifting the suppression orders as regards Dr Z in these disciplinary proceedings will be to compromise the protection that was granted to him by the District Court when it permanently suppressed the details of the unsuccessful criminal charges against him. During the hearing, Mr Stanaway drew to my attention press reporting of the hearing before me which, in his submission, showed that that was not necessarily the case. In that report, by The Press, reference was made to the hearing before me without there being any reference to the earlier criminal proceedings. A brief Google search, which I acknowledge Judges always tell juries not to engage in, provided me with an earlier report on Dr Z’s disciplinary proceedings which identified him as the dentist who

had been acquitted in 2002 after a Court trial prompted by the 2001 incident.12

[94] In my view, therefore, lifting the suppression order will mean that Dr Z would lose the benefit of the suppression orders made in those criminal proceedings. In my view, that counts, and counts very significantly, against the decision being made to lift suppression in the disciplinary proceedings. When I combine that factor with the consideration that these matters now date back some ten years, that Dr Z has in the meantime continued to practice without further complaint and that he is willing to provide an undertaking to the Tribunal that, if asked, he will acknowledge that he was the dentist concerned (an undertaking of a type with which I am not familiar but with which Mr Waalkens and – at least as I understood matters – Mr Stanaway were), then I consider good reasons exist in this very unusual case to maintain the permanent suppression of Dr Z’s name.

[95] I therefore reverse the Tribunal’s decision and grant Dr Z permanent name suppression in these disciplinary proceedings.

12 Fairfax Media “Dentist fights to keep name secret” 19 September 2011 <www.stuff.co.nz>.

[96] I consider that the terms of the appropriate undertaking should be settled as between Dr Z and the, now, relevant disciplinary tribunal. I will leave that matter to Mr Waalkens and Mr Stanaway, unless the further help of this Court is required.

[97] As in effect consented to by Mr Stanaway, I also vary Dr Z’s conditions of practise so that, as regards emergency consultations only, he need not have a chaperone present when dealing with female patients.

[98] I reserve the question of costs. If costs cannot be resolved between the parties, brief submissions may be filed no later than 30 days from the date of this judgment.

“Clifford J”

Solicitors:

Fisher Lamberg, Auckland for the appellant (Counsel: A H Waalkens QC) Raymond Donnelly & Co, Christchurch for the respondent ([e-mail])