ABC v Complaints Assessment Committee [2012] NZHC 1901; (2012) [2012 NZAR 856 (1 August 2012)

Last Updated: 15 August 2012

ORDER PERMANENTLY PROHIBITING PUBLICATION OF NAMES, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000992 [2012] NZHC 1901

BETWEEN ABC Appellant

AND COMPLAINTS ASSESSMENT COMMITTEE

Respondent

Hearing: 12 June 2012

Appearances: A H Waalkens QC for Appellant

C J Lange for Respondent

Judgment: 1 August 2012

_{RESERVED JUDGMENT OF CHISHOLM J}

A The appeal is allowed.

2. The order for permanent suppression of the appellant’s name made by the Disciplinary Tribunal is reinstated.
   

_REASONS

ABC V COMPLAINTS ASSESSMENT COMMITTEE HC CHCH CIV-2011-409-000992 [1 August 2012]

Introduction

[1] Having been found guilty of disgraceful conduct under the Medical Practitioners Act 19951 by the Medical Practitioners Disciplinary Tribunal, Dr ABC was censured and ordered to pay a fine and costs. The Tribunal also imposed conditions as to his practice. His name was permanently suppressed.

[2] The Complaints Assessment Committee then appealed to the District Court against the Tribunal’s failure to remove Dr ABC’s name from the register or to suspend him. It also appealed against the order for name suppression. Judge Doherty dismissed the appeal against sentence but allowed the appeal against name suppression and set aside the Tribunal’s suppression order.

[3] Dr ABC now appeals to this Court pursuant to s 121 of the Medical Practitioners Act against the decision setting aside the Tribunal’s order for name suppression. This appeal is confined to questions of law and six questions of law have been stated for the opinion of this Court.

Background

[4] The Disciplinary Tribunal found that on two occasions during 1985 Dr ABC had sexual intercourse with the complainant who was then aged 16 years. At the time Dr ABC was in his early thirties. Despite the doctor’s denial, the Tribunal also found that the complainant was one of his patients at the relevant time.

[5] A complaint was not made to the Health and Disability Commissioner until

2001, which was about 16 years after the conduct giving rise to the charge had occurred. Although the appellant was charged in 2002, the hearing before the Tribunal did not commence until late 2009 because of what the Judge aptly described as “interlocutory warfare”.

[6] Having delivered a substantive decision in which it found that the charge against the appellant had been proved, the Tribunal then conducted a further hearing

1 Now replaced by the Health Practitioners Competence Assurance Act 2003.

concerning penalty and name suppression. Its decision on those matters was delivered on 1 October 2010.

[7] When granting permanent name suppression the Tribunal took into account: the passage of time (25 years) since the conduct had occurred; absence of any complaints during that period (or earlier); the conduct was “entirely” out of character; potential harm to the appellant’s practice which involved a number of other partners; potential harm to his wife and children; implications for the appellant’s rehabilitation if his name was published; and the absence of any evidence that other medical practitioners would necessarily be impugned if the appellant’s name was not published.

[8] The Tribunal said that, having weighed the matters that it was required to take into account when considering name suppression, it had reached the view:

...that the threshold has been met that it is “desirable” in all the circumstances that an order granting permanent name suppression to Dr ABC [be granted].

It considered this outcome was in accordance with the principles enunciated by the relevant legal authorities (which it had discussed earlier in its decision).

District Court decision

[9] The Judge noted that s 106 was the critical section in relation to name suppression:

106 Hearings of Tribunal to be in public

...

(2) Where the Tribunal is satisfied that it is desirable to do so, after having regard to the interests of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:

...

(d) Subject to subsection (7) of this section, an order prohibiting the publication of the name, or any particulars of the affairs, of any person.

...

He also recorded that counsel were agreed that in respect of name suppression the principles in Austin, Nichols & Co Inc v Stichting Lodestar2 and Kacem v Bashir3 applied.

[10] After detailed discussion the Judge concluded that the Tribunal had erred in

its reasoning and determination concerning “desirability” and:

[66] ...Contrary to the Tribunal’s decision, when weighing the privacy of those persons directly affected and the public interest, in my view it is not desirable to make an order prohibiting the publication of the name of the respondent. Private interests can be protected by the limited orders referred to above and they should continue. In my view, the public interests of openness, transparency, accountability of the disciplinary process and the opportunity for current and potential patients to know the identity of those who breach standards, carry more weight.

[67] The fundamental point here is that the Tribunal found that the respondent committed a serious breach of his professional obligations. Whilst the Tribunal (and this Court on appeal) did not take what might be the ultimate step of removal from registration, it still imposed significant sanctions which included the maximum possible fine. Whilst the ultimate sanction has not been applied, it is in the public interest for the name of a medical practitioner who has transgressed in such a serious way and with the aggravating features highlighted above, to be placed in the public domain thereby allowing those having any current and future contact with him to make their own assessments.

Although the Tribunal’s order for permanent suppression was set aside, the Judge

made an interim order pending the outcome of this appeal.

Issues

[11] The District Court has stated the following questions for determination by this Court:

(a) Did I err in law in directing myself that Austin, Nichols & Co Inc v

Stichting Lodestar principles apply;

(b) Did I err in law in how I applied the statutory test pursuant to Section 106(2) of the Act which requires the order of permanent name suppression sought being “desirable”; and

2 _{Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).}

3 Kacem v Bashir [2010] NZSC 112.

(c) Did I err in law stating the threshold in paragraphs [55] and [56] of my decision before such an order can be made; and

(d) Did I err in law in determining that the continuation of the existing interim orders would alleviate any undue prejudice to the appellant’s family or his medical practice, which might be caused by publication of the appellant’s name; and

(e) Did I err in law in considering the tension between publication and the efficacy of orders made for the purpose of rehabilitation; and

(f) Did I err in law when determining that the effluxion of time between complaint and disposition of this matter was hardly a reason for suppression unless in the context that over that period of time there were no other complaints and the respondent was required to take no remedial steps?

I will now address each of these questions.

Did the Judge err in law when he directed himself that the Austin, Nichols & Co

Inc v Stichting Lodestar principles applied?

[12] On the strength of the agreement between counsel as to the principles that were to be applied when considering the appeal, Judge Doherty adopted a “two-step process” in relation to the name suppression:

[14] ...

(i) The Court is required to decide whether it is desirable to

make an order “having regard to the interests of any person

... and the public interest”. The principles as posited in

Austin, Nichols & Co v Stichting Lodestar ... and Kacem v

Bashir ... apply:

(a) The burden is on the appellant to satisfy the Court it should differ from the decision of the Tribunal;

(b) The Court comes to its own conclusions on the merits;

(c) The Court may take the Tribunal’s decision into

account but need not defer to its decision.

(ii) If it is desirable to make an order the Tribunal still has a discretionary decision whether to make it (May v May4 principles apply).

_{While Mr Waalkens QC acknowledges that the approach adopted by the Judge was}

4 May v May (1982) 1 NZFLR 165 (CA).

understandable in light of the concessions made on behalf of the appellant in the

District Court, he now believes that those concessions should not have been made.

[13] Mr Lange responsibly accepts that the concessions made in the District Court do not prevent the challenge that is now mounted in this Court by the appellant. However, the respondent’s position is that the concessions were properly made and the Judge’s approach was correct.

Appellant’s argument

[14] The decision whether to make an order for name suppression under s 106(2) is entirely discretionary. It over-analyses that decision-making process to break it down into the “two-step” process adopted by the Court. Whether the Tribunal “may” make an order under s 106(2) will be determined by its assessment of whether it is satisfied it is “desirable” to do so. They are not separate steps at all, but essentially merge into one. The words “where the Tribunal is satisfied that it is desirable to do so” simply identify the threshold to be met before an order may be made.

[15] In essence the position is no different to the statutory power of Courts to make an order prohibiting publication of names. In each instance an applicant is required to surmount a threshold before the Tribunal or Court “may” make an order. That is irrespective of the level of the threshold or the particular jurisdiction being exercised.

[16] Section 140 of the Criminal Justice Act 1985 provides the power for a court to make an order of name suppression. It reads:

140 Court may prohibit publication of names

(1) Except as otherwise expressly provided in any enactment, a court may make an order prohibiting the publication...of the name, address, or occupation of the person accused or convicted...or of any other person...

The absence of any specified threshold in s 140 does not mean there is no threshold to be met. Indeed, the courts commonly use the word “exceptional” as the threshold to be met. This is a different level of threshold to that applying in the disciplinary

context.

[17] The proper approach on a name suppression appeal is to regard that decision as entirely discretionary to which the May v May principles apply – not Austin, Nichols.

[18] In Rowley and Skinner v Commissioner of Inland Revenue5 the Court of Appeal determined that the proper approach against a suppression order is to treat it as an appeal against the exercise of a discretion where the May v May principles apply – not Austin, Nichols. A two-step approach was not applied.

[19] Had the Judge treated the name suppression appeal before him as an appeal against the exercise of a discretion, the outcome in this case would have been different.

Respondent’s argument

[20] The two-step process utilised by Judge Doherty was correct. This is the exercise of a deliberative judgment to which the test enunciated in Austin, Nichols applies. If the Tribunal is not satisfied it is desirable to make the order that is the end of the matter and no order can be made. If it is satisfied the statutory precondition is met, the second step, predicated by the word “may”, then follows. The May v May principles apply to that second step.

[21] It is accepted that in the criminal context decisions on name suppression are purely discretionary: Rowley and Skinner v Commissioner of Inland Revenue. This arises from the wording of the power in s 140(1) of the Criminal Justice Act 1985 which states that a Court “may make” an order prohibiting publication. There is no precondition to the exercise of the power, which confers an unfettered discretion.

[22] The approach adopted by the District Court is consistent with a line of cases:

_{Anderson v Professional Conduct Committee of the Medical Council of New}

5 Rowley and Skinner v Commissioner of Inland Revenue [2011] NZCA 160.

Zealand,6 Harman v Director of Proceedings7 and L v Professional Conduct Committee of New Zealand Psychologists Board.8 Use of the May principles in GS v A Professional Conduct Committee9 reflected that the appeal in that case was against penalty and different statutory provisions were involved.

Discussion

[23] When determining whether or not to make an order suppressing publication of the name of any person under s 106(2)(d), the Tribunal was required to apply the following test:

(2) Where the Tribunal is satisfied that it is desirable to do so, after having regard to the interests of any person ... and to the public interest, it may make ...

...

(d) ... an order prohibiting the publication of the name ... of any person. ...

(Emphasis added)

For reasons that follow I am satisfied that Judge Doherty correctly interpreted this as requiring a two-step approach, the first of which involved the Austin, Nichols principles.

[24] Anderson v Professional Conduct Committee was an appeal against refusal to grant name suppression within a medical disciplinary context. Thus the decision is directly in point. After considering earlier authorities Gendall J inclined to the view that:

[31] ... the granting, or not, of a suppression order is a sentencing exercise requiring deliberative judgment, rather than the traditional type of exercising “discretion”. The Tribunal has to be satisfied it is “desirable” to order suppression.

6 Anderson v Professional Conduct Committee of the Medical Council of New Zealand HC Wellington

_{CIV-2008-485-1646, 14 November 2008, Gendall J.}

7 _{Harman v Director of Proceedings HC Auckland CIV-2007-404-003732, 12 March 2009, Wild J.}

8 L v Professional Conduct Committee of New Zealand Psychologists Board HC Auckland CIV-2009-

_{404-0998, 17 September 2009, Andrews J.}

9 GS v A Professional Conduct Committee [2010] NZHC 458; [2010] NZAR 417 at [14].

Although the appeal in that case concerned s 95(2) of the Health Practitioners Competence Assurance Act 2003, the wording is essentially the same as s 106(2) of the Medical Practitioners Act.

[25] While I have reservations about whether the granting or not of a suppression order can be properly equated with “a sentencing exercise”, I agree with Gendall J that the “desirable” component of the statutory provision requires deliberative judgment rather than the exercise of a discretion. It is only if that threshold can be met that the truly discretionary component comes into play. I do not accept Mr Waalkens’ proposition that the two steps effectively merge into one. On my reading of s 106(2) there are two discrete steps.

[26] Support for that approach can be found in Harman v Director of Proceedings where Wild J specifically aligned himself with the view expressed by Gendall J.10 I note, however, that the appeal before Wild J did not involve name suppression.

[27] Further support can be found in L v Professional Conduct Committee. That case involved both an appeal against refusal to grant name suppression and an appeal against penalty/costs. In relation to the name suppression appeal Andrews J followed Anderson.11 But she decided that the appeal against penalty/costs involved the exercise of a discretion and that the May approach applied.12 The different

approach by Andrews J to each appeal illustrates the importance of the underlying statutory provisions.

[28] In the case of name suppression the underlying provision that needed to be applied by Andrews J was s 95(2) of the Health Practitioners Competence Assurance Act. As already discussed, this section involves two discrete steps with the first step requiring a determination as to whether it is “desirable” to make a suppression order. Because this step required deliberative judgment rather than the exercise of a

_{discretion, Andrews J applied the Austin, Nichols approach.}

10_{Harman v Director of Proceedings, above n 7, at [51].}

11 _{L v Professional Conduct Committee of New Zealand Psychologists Board, above n 8, at [124].}

12 Ibid at [32].

[29] On the other hand, the decision of the Tribunal as to penalty/costs arose from s 101(1) of the Health Practitioners Competence Assurance Act which provides:

101 Penalties

(1) In any case to which section 100 applies, the Tribunal may-13

(a) order that...

[The various orders that the Tribunal could make (including costs), are then listed].

Given that there was no issue that s 100 applied, the only issue on appeal was whether the Tribunal had correctly exercised its discretion as to penalty/costs. There was no preliminary threshold and it was simply a matter of examining the Tribunal’s exercise of discretion. Consequently, the May principles applied.

[30] The same approach to an appeal against penalty was adopted in GS v A Professional Conduct Committee which also concerned the Health Practitioners Disciplinary Tribunal. Following L, Venning J decided that the appeal against the penalty imposed by the Tribunal was an appeal against the exercise of a discretion and that the May principles applied.

[31] After Judge Doherty heard the appeal, but before his judgment was delivered, the Court of Appeal delivered its decision in Rowley and Skinner v Commissioner of Inland Revenue. In that case counsel were agreed, and the Court concurred, that the proper approach on an appeal against a name suppression order is to treat it as an appeal against the exercise of a discretion and to apply the May principles.

[32] In my view that decision is entirely compatible with the decisions of this Court discussed earlier. As Mr Lange pointed out, the discretion in that case was conferred by s 140(1) of the Criminal Justice Act14 which states that a Court “may make” an order prohibiting publication. Apart from the wide discretion, there is no

_{precondition to its exercise.}

13 _{Emphasis added.}

14 See [16] above where the relevant part of the section is quoted.

Answer to the first question

[33] The principles in Austin, Nichols applied and the Judge did not err in law.

The answer to the first question is “no”.

Did the Judge err in law in the way he applied the statutory test pursuant to s 106(2) of the Act which requires the order of permanent name suppression sought to be “desirable”?

[34] With reference to the word “desirable” the Judge said:

[55] Frater J in Director of Proceedings v I [2004] NZAR 635 assessed “the threshold to be attained in each case before the balance is tipped in favour of name suppression” under the 1995 Act to be somewhat lower than that commonly applying in the Courts. However, the Judge also assessed the factors to be taken into account in deciding whether whatever threshold applies is reached are “universal”.

[56] Using the same definition of “desirable” as that applied in that case (New Penguin English Dictionary [2000 ed]) i.e. “worth seeking or doing as advantageous, beneficial or wise” it seems to me that the advantage, benefit or wisdom must be related to “the interests of any person ...and to the public interest. That is, there must be a weighing of both those interests in the assessment exercise.

[57] I agree with the submission for the appellant (relying on T v Director of Proceedings which referred to the observations in B v B) that what must be considered is the tension between publication and the efficacy of orders made for the purpose of rehabilitation.

[58] It is difficult to see that the rehabilitation of the respondent would create undue difficulties if his name were to be published. One of the orders relating to rehabilitation was for the undertaking of the Medical Council SMAT and to comply with any conditions which may be imposed. Public knowledge of the respondent’s name would have no impact at all on the taking of the test nor I suggest would any compliance with conditions imposed. Those might include for example chaperoning or a more formal informed consent process when dealing with patients in particular circumstances. Following publication, any patient could be assumed to be aware of the respondent’s conduct in this matter and have remained as a patient notwithstanding. It is hard to envisage any adverse impact. None was articulated or postulated by the Tribunal.

[59] Similarly, with the appointment of a mentor. The relationship between the respondent and his mentor is hardly to be affected by publication of his name.

[60] Significant weight seems to have been placed by the Tribunal on the effects of publication on family and the medical practice. As an interim measure the Tribunal went to significant lengths to make interim decisions to

protect this class of person (which I accept is in the “any person” category rather than the “public interest” category). This included a suite of orders suppressing not just names but passages of evidence, the historic medical conditions of named persons, names of places, dates of birth, email addresses and the like. These interim orders were made final in the penalty decision. They appear to have had a dual role of protection of the named individuals as well as preventing the identification of the respondent.

[61] The fact that a person in the position of the respondent would suffer personal, professional and familial embarrassment goes with the territory. It has been well established in the criminal context that that in itself is not grounds for name suppression (see R v Liddell [1995] 1NZLR 538).

[62] The continuation of the myriad of orders referred to above would alleviate any undue prejudice or impact to the respondent’s family (including his wife in her teaching position) or to his medical practice. There would, of course, be some association between the respondent and the practice in which he works by those of his patients who know the connection. However, it is likely to be limited and those members of the public are the very ones whose interests are sought to be protected in the balancing exercise. This is particularly so when the findings of the Tribunal are that this conduct was a serious breach amounting to disgraceful conduct in a professional respect.

[63] It seems to me axiomatic that there is the risk that other medical practitioners in the city where the respondent practices could be impugned by non publication of the name. I disagree with the Tribunal in the implication that positive evidence would be required to give this submission some force. However, that said, the risk I suggest is relatively low.

[64] The effluxion of time between complaint and disposition is hardly a reason for suppression unless in the context that over that period of time there were no other complaints and the respondent was required to take no remedial steps. However, the Tribunal did make orders requiring rehabilitative steps to be taken. Thus it seems to have taken the view that whilst there had been no complaints, the lack of insight and empathy for the complainant meant the respondent continued to have issues. It seems to me given that view, there is some strength in the submission from the appellant that no matter what the delay or who caused it, that in itself is hardly sufficient reason to grant suppression.

[65] The respondent submitted strongly that the Court should defer to the decision of a very experienced Tribunal on this issue. But this is not an issue that requires any specialist knowledge or expertise. It is the assessment of a set of general circumstances and legal principles such as the Court deals with virtually on a daily basis.

Appellant’s argument

[35] By stating at [55] that the threshold for name suppression in a disciplinary case is “somewhat lower” than the threshold applying to that used in the criminal law, the Judge has minimised the distinction. The actual distinction is between

“desirable” in the disciplinary context and the “exceptional” test commonly used by the Courts. The Judge has further undermined the threshold by describing the factors to be taken into account as being “universal” regardless of whether it is a disciplinary or other context.

[36] The Judge also fell into error at [57] when he stated that what must be considered is the tension between publication and the efficacy of orders made for the purpose of rehabilitation. In the context of what is “desirable” that is far too narrow. The District Court seems to have proceeded on the basis that rehabilitation was a significant issue supporting name suppression. But that was not the case. It was only a “subservient point” in the reasoning of the Tribunal. The Judge misapplied

B v B.15

[37] To the extent that the Judge concluded that the “suite of orders” discussed at [60] would alleviate any undue prejudice or impact on the respondent’s family or his medical practice (at [62]), he was wrong. The Judge’s reasoning at [61] was wrong in law and it also failed to take into account the lower threshold for a disciplinary

case. The appellant’s wife risks much more than anguish, and B v R16 is applicable.

[38] At [64] the District Court rejected delay as a reason for suppression orders unless over that period of time there were no other complaints and the practitioner was required to take no remedial steps. As a matter of law it was wrong to exclude delay as a factor unless both criteria were met. It was a relevant factor in this case.

Respondent’s argument

[39] When setting out the general legal principles the District Court did not err in law. Ultimately, it was necessary for the Judge to undertake a balancing exercise and when the judgment is read as a whole there was no error in the Court’s approach to the “desirability” test.

[40] While it is accepted that disciplinary cases involve a lower threshold than used by the Courts, the distinction was recognised and applied by the Judge.

[41] Contrary to the appellant’s submission, the Judge did not conclude at [57] that rehabilitation should be excluded from the “desirability” test unless publication would create undue difficulties for the practitioner. The Judge was simply reflecting that there was a tension between publication and the efficacy of orders made for the purpose of rehabilitation. That was consistent with the approach adopted by

Panckhurst J in T v Director of Proceedings.17

[42] Whether it is “desirable”, having regard to the public interest and the interests of the practitioner, requires not only consideration of the interests surrounding publication, but also the effect publication might have on rehabilitative orders. If publication would have no impact on the rehabilitative orders, then that is a matter supporting publication.

[43] The appellant’s allegation that the District Court excluded harm to third parties when considering whether it was “desirable” to make an order is factually incorrect. When referring to the comments in Director of Proceeding v I at [55] the Judge clearly took into account the matters referred to in that decision. The case stated also records that Judge Doherty did consider the interests of the third parties could be ameliorated by the other suppression orders that were in place.

Discussion

[44] Not surprisingly it is common ground that the “desirable” test in s 106 involves a lower threshold than the “exceptional” test commonly used by the Courts. In Director of Proceedings v I Frater J concluded that the “exceptional” test commonly used by the Court “connotes something much less commonplace”

(emphasis added) than “desirable”.18 I agree that the test in s 106(2) involves a

threshold that is significantly lower than the test generally used by the Courts.

[45] If anything the expression of “somewhat lower” used by the Judge tends to understate the distinction. Added to that, the approach that the factors to be taken into account are “universal” regardless of the context (which was, of course, based on Director of Proceedings v I which the Judge was obliged to follow) also tends to undermine the “desirability” threshold. But, on balance I am not prepared to categorise the Judge’s approach at [55] as erroneous in law.

[46] Nor have I been persuaded that the Judge was wrong in law when he referred (at [57]) to the tension between publication of the appellant’s name and the efficacy of orders made for the purpose of rehabilitation. He was applying the broad approach utilised by Panckhurst J in T v Director of Proceedings at [58]. In any event, rehabilitation was not a weighty consideration in this case.

[47] On the other hand, I am satisfied that the appellant is on sound ground when he takes issue with the Judge’s approach to the appellant’s family and medical practice at [61]. Having referred to personal, professional and familial embarrassment of a person in the position of the appellant, the Judge then relies on R

v Liddell19 to support the proposition that those matters of themselves are not

grounds for name suppression. In my view that paragraph contains two errors of law.

[48] First, when the paragraph is read as a whole it is clear that the Judge is referring to the appellant’s situation where the “desirable” threshold applies. However, he has used the criminal threshold to effectively rule out, or at least minimise, any possibility that the appellant’s family or medical practice considerations might tip the balance in favour of suppression.

[49] Secondly, the Judge has overstated what the Court of Appeal actually said in

Liddell:20

... anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting

of justice. Bearing in mind as well the particular public interest in reporting which, for reasons about to be given, is present here, we do not think that this case is sufficiently exceptional. (Emphasis added)

Rather than holding that personal, professional and familial embarrassment (or in the Court of Appeal’s word “anguish”) could not in itself be grounds for a suppression order, the Court of Appeal left the door open to that possibility.

[50] The impact of those errors of law will be discussed with reference to the third question at [55] – [58] below.

[51] At [64] the Judge expressed the view that the effluxion of time between complaint and disposition:

...is hardly a reason for suppression unless in the context that over that period of time there were no other complaints and the respondent was required to take no remedial steps.

Later he expressed the view that there was “some strength” in the submission that “no matter what the delay or who caused it, that in itself is hardly sufficient reason to grant suppression”.

[52] In itself the effluxion of time between the conduct giving rise to the complaint and disposition might not justify name suppression. But application of the “desirable” threshold under s 106(2) could mean that this factor, in conjunction with other factors, tipped the balance in favour of suppression. Rather than reaching any final conclusions in relation to the question under discussion, I will return to this issue at [61] below.

Answer to the question

[53] Yes, the Judge erred in law in the way he applied the s 106(2) test as to the effects of publication on the appellant’s family and medical practice.

Did the District Court err in law when stating the threshold in paragraphs [55]

and [56] of its decision before such an order can be made?

[54] For the reasons given at [44] and [45], the answer to this question is “no”.

Did the District Court err in law in determining that the continuation of the existing interim orders would alleviate any undue prejudice to the appellant’s family or his medical practice, which might be caused by publication of the appellant’s name?

[55] At [62] the Judge expresses the view that the “myriad of orders” made by the Tribunal would “alleviate” any undue prejudice to, or impact on, the appellant’s wife. However, on the evidence before the Tribunal I cannot see how anything short of suppression of the appellant’s name could alleviate the potential harm to the appellant’s wife. Those matters go deeper than “embarrassment” (as referred to in [61] or “anguish” as described in Liddell.

[56] The Tribunal was satisfied that the appellant’s wife “would be undoubtedly harmed” (emphasis added) in the practice of her profession if the appellant’s name was published. In my view that was the only tenable conclusion once the letter explaining the appellant’s wife’s situation and material that was sent anonymously to the appellant’s wife is taken into account.

[57] Possible injury to family members was considered by the Court of Appeal in B v R21 in the context of an objectionable publication under the Films, Videos, and Publications Classification Act 1993. The Court said that when declining name suppression the District Court Judge:

[23] ...appears to have proceeded on the basis that no amount of injury to family members would be sufficient to displace the presumption in favour of open reporting. We infer that he also took the view that the orders he made in relation to individual family members would be effective to shield them from injury or, at least, to alleviate the consequences to them. In our view, the Judge erred in both respects.

[24] Publication of Mr B’s name would plainly cause incalculable hurt to individual family members and the extended family as a group. Apart from the acute embarrassment it would cause on a personal level, it would

21 B v R [2011] NZCA 331.

undoubtedly compromise the ability of Mrs B and her two daughters to do their jobs...

[25] The suppression orders made by Judge Garland are unlikely to bring any significant benefit. The evidence is clear that the relationship of all family members to Mr B is widely known in the community in which they live. Publication of his name will cause immediate and unavoidable harm to them regardless of the suppression orders.

The appeal was allowed and the appellant’s name was permanently suppressed. In my view there are strong parallels between that case and the situation of the appellant’s wife in this case.

[58] Although warranting less weight in the balancing exercise, there was also evidence concerning the appellant’s practice partners and clinical trials that he is conducting. That evidence supports the conclusion that once the public interest and private interests are balanced it is “desirable” for the appellant’s name to be suppressed.

Answer to the question

[59] Yes.

Did the District Court err in law in considering the tension between publication and the efficacy of orders made for the purpose of rehabilitation?

[60] No. See [46] above.

Did the District Court err in law when determining that the effluxion of time between complaint and disposition of this matter was hardly a reason for suppression unless in the context that over that period of time there were no other complaints and the respondent was required to take no remedial steps?

[61] When deciding whether it was “desirable” to prohibit publication of the appellant’s name the Tribunal had to balance (amongst other things) the interests of the appellant and the public interest in openness. One of the matters advanced by the appellant was his professional and personal conduct over the 25 years (now 27 years) since the misconduct occurred.

[62] In my view there are two problems with the approach that the Judge adopted. First, whereas the Tribunal took into account the whole period between the misconduct and the hearing, the Judge appears to have confined his consideration to the period since the complaint was lodged. This had the effect of understating the appellant’s period of good professional and personal conduct by around 16 years. Secondly, the Judge seems to have effectively ruled out this factor because the appellant was not required to take any remedial steps during the period under consideration. In my view that approach is not compatible with s 106(2) which allows all relevant matters of private or public interest to be taken into account.

Result

[63] Having reached those conclusions it is necessary to apply Austin, Nichols when determining whether the suppression order made by the Disciplinary Tribunal was “desirable” having regard to the interests of any person and the public interest. In my judgment that threshold was met, particularly having regard to the interests of the appellant’s wife. Moreover, I am satisfied that the Tribunal correctly exercised its discretion to order permanent suppression of the appellant’s name.

[64] The appeal is therefore allowed and the order for permanent suppression of name made by the Tribunal is to be reinstated. My tentative view is that the respondent should pay the appellant costs on the 2B scale. If either party wishes to take issue with that view brief memoranda (no more than three pages) should be filed within a month from delivery of this judgment.

Solicitors:

Harry Waalkens QC, Auckland, [e-mail]

Raymond Donnelly & Co, Christchurch, [e-mail]