Dr N v A Professional Conduct Committee of Medical Council of New Zealand [2013] NZHC 3405 (16 December 2013)

Last Updated: 12 February 2014

NOTE: JUDGMENT IS ANONYMISED TO COMPLY WITH NON PUBLICATION ORDERS MADE BY NEWZEALAND HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL UNDER S 95 OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-718 [2013] NZHC 3405

UNDER the Health Practitioners Competence

Assurance Act 2003

IN THE MATTER of an appeal pursuant to s 106(2)(d) against orders of the New Zealand Health Practitioners Disciplinary Tribunal

BETWEEN DR N Appellant

AND A PROFESSIONAL CONDUCT COMMITTEE OF MEDICAL COUNCIL OF NEW ZEALAND

Respondent

Hearing: 16 September 2013

Counsel: M McClelland for the Appellant

J Hughson for the Respondent

Judgment: 16 December 2013

_{JUDGMENT OF MALLON J}

Table of Contents

Introduction ....................................................................................................................................... [1]

Background........................................................................................................................................ [2]

The Tribunal’s decision................................................................................................................. [28] Anonymisation process ................................................................................................................. [34] Issue 1: Approach ............................................................................................................................ [40]

Issue 2: identity of other persons and entities with permanent name suppression.................... [51] Issue 3: identity of the patients....................................................................................................... [57] Issue 4: unfairly impugns other practitioners............................................................................... [62] Balancing the factors....................................................................................................................... [66]

_{Result ................................................................................................................................................ [70]}

DR N v A PROFESSIONAL CONDUCT COMMITTEE OF MEDICAL COUNCIL OF NEW ZEALAND [2013] NZHC 3405 [16 December 2013]

Introduction

[1] Dr N appeals against a decision of the New Zealand Health Practitioners Disciplinary Tribunal declining her permanent name suppression. The Tribunal’s decision was made in respect of its decision that a charge of professional misconduct against Dr N was proven. The issues raised on this appeal are:

(a) the proper approach to appeals against the Tribunal’s decisions on

name suppression applications;

(b) whether the Tribunal erred in its assessment in relation to:

(i) the risk that if Dr N’s name is published it will identify the entities and other persons which have permanent name suppression;

(ii) the risk that if Dr N’s name is published it will identify the

patients in respect of which the charges were brought; (iii) the need to avoid unfairly impugning other practitioners.

Background

[2] There was an agreed summary of facts for the disciplinary charge. The following description of the background facts comes from that agreed summary.

[3] The charge of professional misconduct relates to Dr N’s conduct in prescribing or dispensing the drug misoprostol (Cytotec is the brand name) to four patients. Misoprostol is a drug used for the prevention and treatment of ulcers. A known pharmacologic effect of misoprostol is that it may endanger pregnancy. It is therefore “contraindicated” in women who are pregnant or in patients in whom pregnancy has not been excluded. Misoprostol is not approved anywhere for obstetric or gynaecological use. However it is commonly used for medical abortions carried out in a licensed abortion facility.

[4] Section 25 of the Medicines Act 1981 permits a practitioner to use any medicine (approved or unapproved) for the treatment of a particular patient in his or her care. The Act puts no restriction on the use of a medicine, even in a situation in which it is contraindicated. However, whether the practitioner uses approved or unapproved medicines, he or she must provide care to an adequate professional and ethical standard. For an unapproved medicine or unapproved use, the consumer should be advised of the unapproved status. The consumer should also be advised of the degree and standard of the support for the use of the medicine, and of any safety concerns, warnings, or contraindications regarding its use in their particular condition.

[5] Abortion in New Zealand is governed by the Contraception, Sterilisation, and Abortion Act 1977 (the CSA Act) and certain provisions in the Crimes Act 1961. Under the CSA Act the procedure for the authorisation of an abortion includes that it be authorised by two medically qualified and specially approved certifying consultants who are satisfied that one of the grounds justifying an abortion exists.¹

The grounds for abortion are set out in s 187A of the Crimes Act 1961. There is a

legal requirement to offer counselling to a person seeking an abortion.² There are also specific record keeping and reporting provisions.³

[6] There are two methods for performing abortions in New Zealand. One method is medical abortion where medication is used to induce an abortion. The second method is surgical abortion. There are extensive guidelines on the use of medical abortions in New Zealand.⁴ The Guidelines state that because misoprostol is not registered for use in abortion, patients must sign an informed consent, which states that the drug is not registered for this purpose, and that the use is evidence-

_based.⁵

¹ _{Contraception, Sterilisation and Abortion Act 1977, ss 29, 32 and 33.}

² _{Section 35.}

³ _{Sections 36 and 39.}

⁴ Abortion Supervisory Committee Guidelines for the Use of Mifepristone for Medical Abortion in

_{New Zealand (August 2004).}

⁵ At 9 and 12.

[7] Dr N practises at entity 1 which is in a small town. For many years, she was also the doctor at entity 2. From time to time she also worked at entity 3 and entity

4.⁶ She was a certifying consultant under the CSA Act.⁷

[8] The professional misconduct charge arose out of alleged misconduct in relation to four patients who were prescribed misoprostol. Patients A, B and C were pregnant and wished to have a termination. Patients A and B went to entity 2 where they received misoprostol. Patient C was referred to entity 3 where Dr N was working, because Dr N would not be working at entity 2 for a few days. The issues were around what tests were carried out before the prescriptions were given, what the patients were told/understood and how the prescriptions and consultations were documented. Patient D went to entity 2 for an IUD. She was prescribed misoprostol because the insertion of the IUD was difficult. The prescription was the correct dosage for a difficult IUD. The issue was around documentation.

[9] The charge was as follows:

Particulars of Charge of Professional Misconduct

Pursuant to section 81(2) of the Act the Committee charges that Dr N (“Dr N”) registered medical practitioner [ ] acted inappropriately and/or contrary to the best interests of her patients in that she:

1. Prescribed and/or dispensed misoprostol (Cytotec) [ ] in a manner contrary to legal pregnancy termination procedures specified in the Contraception, Sterilisation, and Abortion Act 1977 and/or otherwise inappropriately on the following occasions:

a. On [ ] at the X to Patient A; and/or b. On [ ] at the X to Patient B; and/or c. On [ ] at the XY to Patient C.

2. Before prescribing and/or dispensing misoprostol (Cytotec) to

Patient A on or about [ ] Dr N failed to:

a. undertake appropriate clinical assessments and/or tests to determine if Patient A’s pregnancy was a non-viable pregnancy; and/or

⁶ _{Entities 2, 3 and 4 were all in the city which is near to the town where entity 1 is located.}

⁷ A “certifying consultant” is a medical practitioner who may be called upon to consider cases referred to them and determine in accordance with s 33 of the CSA Act, whether to authorise an abortion: Contraception, Sterilisation, and Abortion Act 1977, s 30(1).

b. exclude the risk of Patient A’s pregnancy being ectopic;

and/or

c. ensure Patient A had adequate support available to her in the event she took the misoprostol (Cytotec) which Dr N had prescribed for and/or dispensed to her.

3. Prescribed and/or instructed Nurse E by telephone to dispense misoprostol (Cytotec) to Patient B on [ ] without Dr N:

a. first having seen Patient B herself in a consultation; and/or

b. undertaking appropriate clinical assessments and/or tests to determine if Patient B’s pregnancy was a non-viable pregnancy; and/or

c. Excluding the risk of Patient B’s pregnancy being ectopic.

4. Failed to document in her patient’s clinical notes the prescribing

and/or dispensing of misoprostol (Cytotec) on or about:

a. [ ] to Patient A (56 tabs dispensed pursuant to prescription dated [ ]); and/or

b. [ ] to Patient B (8 tabs); and/or c. [ ] to Patient C (16 tabs); and/or d. [ ] to Patient D (2 tabs).

The conduct alleged in particulars 1-4 separately and/or cumulatively amount to professional misconduct under section 100(1)(a) and/or (b) of the Act.

[10] The charge was brought as a result of information received by a third party. The four patients concerned had not complained and did not know about the complaint or the disciplinary proceeding.

[11] On 6 November 2012 interim suppression orders were made as follows:

The application for an interim order prohibiting publication of Dr [N]’s name and identifying features was consented to by counsel. In order to ensure the integrity of the interim name suppression order, counsel for the PCC sought interim non-publications orders in relation to [entity 3] and [nurse from entity 3]. Counsel for Dr [N] agreed. It was also accepted that the Chair could make a consent order.

The Chair is satisfied that the application for an interim order of non publication of the above names was a proper one.

[12] On 8 January 2013, by consent, permanent name suppression was ordered in respect of another doctor who was to be a witness.

[13] On 8 March 2013 an application was made for permanent name suppression for entity 2. The application was made on the basis that:

(a) Patients A, B and D did not know about the charges and would be able to identify themselves if the proceedings were published in media reports and this would undermine the principle of confidentiality for patients.

(b) Publication of the name of entity 2 would adversely affect its reputation. This could affect people’s willingness to access health services provided by entity 2.

(c) It was likely that entity 2, its staff and possibly its clients could be subject to harassment by media and members of the community who have strong views around the sensitive and contentious issue related to the administration of the medication referred to in the charge.

(d) It would be unfair to entity 2 if it were named and Dr N were not (if her name were to continue to be suppressed).

[14] The hearing was to take place in the city where the conduct occurred on 11

March 2013. In the week before that hearing, there was a report in the local newspaper that a case involving a medical practitioner was to be heard in the city in the following week. The hearing took place in private.

[15] At the commencement of this hearing, by consent, interim name suppression was ordered in respect of a nurse at entity 2, and permanent suppression was ordered in respect of entity 2. The Tribunal was also informed that the four patients about whom the charge concerned had not been informed of the charge. The Tribunal considered there to be a significant ethical issue that the patients’ clinical records had

been reviewed without their knowledge. It considered that this needed to be addressed by provision of relevant information to them.

[16] The Tribunal directed that specified relevant information was to be provided to a doctor from entity 2 for the purposes of informing Patients A, B and D and another doctor for the purposes of informing Patient C. The doctors were directed to emphasise to each patient that neither the Professional Conduct Committee (PCC) (the prosecuting body before the Tribunal) nor the Tribunal would have any information which would allow them to identify the patient and that “suppression orders will be made to ensure that no third party can identify any patient from the information before the Tribunal”. Following discussions with counsel the Tribunal further directed that the doctors were to be expressly informed:

... as to the existence of non-publication orders, which suppressed the names and identifying particulars of [Dr N], [entity 2], [entity 3], and the relevant health practitioners who are described in the summary of facts.

[17] The doctors were asked to confirm by 8 April 2013 that these steps had been taken. The hearing was adjourned to enable this process to be followed. There was another media report in the local paper following the hearing. I do not have details about the content of this report.

[18] The patients were duly contacted and information provided to them in accordance with the Tribunal’s direction. The doctor from entity 2 reported by letter dated 2 April 2013. The letter said that when she called Patients A, B and D she said, “I assured them of the confidentiality of their identity and the confidentiality in relation to the doctor and organisation.” She said that one of the women “commented that she had read about the hearing in the local newspaper and recognised that my phone call may be related to that”. After these calls she met with Patients A and B. She said she made the same assurance at this meeting. She said that one of the women was angry that her information had been released as it identified her NHI. The woman’s view was that it is quite easy to obtain a person’s name and details from an NHI number.

[19] An application for permanent non-publication orders was made in respect of entity 3 (and related bodies). On 12 April 2013 the Tribunal made an interim non-

publication order in relation to one of those bodies, noting that entity 3 and other related bodies already had interim non-publication orders and that whether these orders should be made permanent could be considered at the hearing itself.

[20] On 24 April 2013 the nurse from entity 2 applied for permanent name suppression. She filed an affidavit in which she stated that, due to her long employment with entity 2, publication of her name would inevitably lead to identification of entity 2. She said that:

I am fearful that if my name is released in connection with these proceedings against Dr [N], the organisations which Dr [N] and I worked for together, including [entity 2 and a related body] will be identified and sadly we may all be a target for trouble.

[21] The hearing resumed on 29 March 2013 in Wellington. At the commencement of the hearing a permanent suppression order was made in respect of the names of the four patients and their identifying particulars. An interim suppression order was made in respect of a pharmacy and an employee at that pharmacy.

[22] The Tribunal turned to consider whether the hearing should be in private or open. Members of the media were present. Counsel for Dr N contended that the hearing should be private. He submitted that the patients had not been informed that their private information was going to be discussed in a public hearing with members of the public and media present. The Tribunal ruled that the hearing be held in public. In making that ruling the Tribunal noted the permanent orders it had made in respect of the patients. It considered that the four patients would have known that their clinical information, in an anonymised form, would be discussed before the Tribunal. Counsel for Dr N expressed concern at the ruling and he was given a five minute adjournment to consider Dr N’s position. The hearing resumed after that five minute adjournment.

[23] At the end of the hearing the Tribunal gave an oral decision. It found the charge of professional misconduct made out.⁸ Submissions on penalty and name

8. In reaching this view it was satisfied that each of the sub-particulars were made out, except sub- particulars 2(b) and 3(c), and that the proven particulars amounted to professional misconduct.

suppression were made. On penalty the Tribunal ordered that Dr N be suspended for six months from 27 May 2013, conditions of practice were imposed for a period of three years from the resumption of practice, a recommendation was made to the Medical Council that Dr N be prohibited from prescribing or supplying misoprostol for a maximum of three years from the resumption of practice, and it ordered that Dr N be censured. Subsequently an order to pay costs was also made.

[24] In respect of name suppression the Tribunal said:

Turning to name suppression. The interim order in respect of Dr [N] will cease to have effect as from 6 May 2013, save for the fact that the offending took place in [named city] which shall remain a matter that is the subject of a non-publication order. The interim orders in respect of all other persons and entities are now made permanent.

[25] Dr N lodged an appeal to the High Court on the decision declining her name suppression on 2 May 2013. On 3 May 2013 the High Court, by consent, stayed the penalty decision of the Tribunal insofar as it related to the quashing of the interim suppression of Dr N’s name and identifying particulars. The appellant’s name and identifying particulars were suppressed until further order of the Court.

[26] On 13 May 2013 entity 2 wrote to the Tribunal expressing concern about the possibility of the Agreed Summary of Facts for the hearing being referred to in the Tribunal’s decision and available to the public. The letter said:

We were surprised at how much information was published in the media following the Tribunal’s public hearing and would be extremely concerned if more details were released.

...

The information in the Agreed Summary of Facts was obtained without any consent of the clients. It is abhorrent to me that this information could make its way into the public domain. While I appreciate that the women referred to in the charge have name suppression, I think we need to put ourselves in these women’s shoes and consider – even if your name is not made public would you want your very personal story to be made publically available? Particularly given that if your doctor had acted appropriately none of this information would ever be available to any clinician without your permission, let alone a member of the public.

These women were coming to a health service about extremely sensitive issues – medically, emotionally and socially. We feel that it is absolutely

inappropriate that details of these issues are made publicly available, regardless of whether the women are identifiable or not.

[27] The letter requested that the Tribunal consider referring to no or as little as possible personal and clinical information in the publically available version of the decision.

The Tribunal’s decision

[28] On 31 May 2013 the Tribunal gave its reasons for the oral decision declining Dr N name suppression and its other suppression order. In relation to the permanent order made for each of the patients concerned, the Tribunal considered that the “sensitive and intensely private information of patients was such that ... her privacy interests significantly outweighed the principles of open justice.” In relation to the other persons and entities, other than Dr N, who were the subject of earlier interim and/or permanent orders, the Tribunal was satisfied that permanent orders were appropriate because “there were very compelling factors of privacy and confidentiality in respect of those persons/entities (whose conduct was not at issue in this proceeding)”.

[29] In relation to Dr N’s application for permanent suppression, the Tribunal considered that the following factors were “entitled to considerable weight”:

(a) open justice and the right of the public to know the identity of a health practitioner subject to disciplinary proceedings particularly when a serious charge is established; and

(b) avoiding unfairly impugning other practitioners, particularly when the matter involves serious charges of illegality and inappropriate conduct.

[30] A range of factors were relied on by Dr N as to why it was desirable that the Tribunal make a permanent order of non-publication of her name. One of those was that it was said that publication of Dr N’s name would render nugatory the suppression of other entities. As to that the Tribunal said:

A strong submission was made that publication of Dr N’s name would effectively render nugatory the extensive orders it made in respect of other persons and/or entities. In some circumstances it is necessary to suppress a practitioner’s name so as to preserve the integrity of other orders made. Here, the evidence before the Tribunal is that Dr N worked at at least four different clinics over the relevant period. Whilst there may be patients who consulted with Dr N at some of those locations, and there is accordingly a risk of some members of the public speculating as to which premises the consultations may have occurred, the Tribunal does not consider this factor is so strong as to outweigh the various factors which point towards publication of name. The Tribunal assesses this risk as modest, which can be mitigated by an order suppressing the place of the offending was in [named city]. It is a point which is entitled to some weight but it is far from being determinative.

[31] It was also said that if Dr N did not have name suppression, it would disclose the identity of the four patients. The Tribunal said:

As regards the question of whether patients may be identified the Tribunal considers that the extensive permanent orders which have been made will ensure that there is practically no possibility of patients being identified, even by family members or close friends. No names, addresses, dates of birth or other identifying information have been placed before the Tribunal and will not be published; neither will dates and locations be published. No particular concerns were conveyed to the Tribunal by the patients involved with regard to this factor; such concerns would have been made known to the Tribunal if they existed. Furthermore, the extent of Dr N’s involvement in the work which is the subject of this proceeding over the years means that she will have seen a very significant number of patients over time; and that fact reinforces the conclusion that there is no real risk of patients being identified through Dr N’s name being published. This factor is not compelling.

[32] As to other factors relied on by Dr N, the Tribunal said:

(a) There was no real prospect of Dr N’s patients in her general practice being adversely affected, they had a right to know about Dr N’s suspension, and the harm to Dr N’s reputation was an inevitable consequence of disciplinary findings.

(b) Distress to Dr N’s family members was an inevitable consequence of a disciplinary finding and could be mitigated by providing Dr N with the opportunity to inform family members in advance of her name being published.

(c) While there was a rehabilitative component to the Tribunal’s orders against Dr N, suspension was for the protection of the public and the maintenance of professional standards and these factors pointed towards openness, transparency and accountability.

(d) Although abortion is a contentious issue in New Zealand and one that can engender strong reactions in some people, there was no evidence that this risk was greater for Dr N (who was found to have acted illegally and improperly) than for those doctors performing legal abortions. There was also no evidence of an actual risk of Dr N’s safety being compromised. This meant that, although Dr N’s fear for her safety was entitled to some weight, it was not an overwhelming factor.

[33] The Tribunal also considered that publication of Dr N’s name was a proportionate response in light of the range of penalty outcomes it imposed. It was therefore “not satisfied that it [was] desirable to make a permanent order” after considering all the factors it considered to be relevant.

Anonymisation process

[34] With the release of the Tribunal’s decision setting out its reasons for declining Dr N name suppression, counsel for the PCC and Dr N were advised that they would be provided with a draft anonymised version of the decision and they had until 5

June 2013 to file any comments on that decision. The PCC advised of some edits it considered were required. Counsel for Dr N submitted that:

(a) All details of each patient’s consultations with Dr N should be removed from the decision to be published (since the Tribunal could not assume that they were aware that such details would be included in a public document).

(b) If the Tribunal were not minded to do that, then each of the patients

should be fully advised of what is proposed, including that Dr N’s

name is to be published, and be provided with an opportunity to consent or otherwise.

(c) If Dr N’s name is published she will be recognisable as the face of entity 2 for many years and who has also worked at entity 3 for a number of years. This would compromise the existing permanent suppression orders.

[35] In light of these matters, a large number of deletions were proposed. It was also submitted that these deletions showed just how difficult it was to maintain the integrity of the permanent suppression orders (made by consent and for very good reason) if Dr N were named and that the Tribunal should err on the side of caution so that they were not compromised.

[36] Following the PCC’s response to these submissions, the Tribunal issued a minute dated 2 July 2013. The minute advised that:

(a) The Tribunal was preparing a form of the decision that it proposed would be published, which would be available to the High Court if the parties considered that to be appropriate.

(b) Pending the outcome of the High Court appeal, a brief summary of the outcome of the hearing would be prepared for publication, which would be available to counsel for comment prior to publication.

(c) Subject to submissions from counsel, the Tribunal proposed to provide a copy of the Tribunal’s decision (with Dr N’s name anonymised) to counsel for entity 2 given her involvement in the matter.

[37] The brief summary decision (refer [36](b) above) set out the charge in the anonymised form (set out above), the finding that the charge was established and the penalty that was imposed. It also stated the publication of Dr N’s name had been stayed pending an appeal to the High Court.

[38] The Tribunal received comments on the proposed anonymised decision (refer [36](a) above) from entity 2 and from the doctor who spoke with patients A, B and D prior to the Tribunal hearing:

(a) Entity 2 remained concerned about the level of personal and sensitive patient detail (disclosed in the context of a consultation that was understood to be confidential) that remained in the decision to be published. It also expressed a concern that, if Dr N were named, it would be relatively simple to identify entity 2 which would undermine the suppression order in place. It proposed that:

... all references to [entity 1] should be removed, as where this [is] mentioned, it clearly shows that the events mentioned in the charge did not occur there (effectively narrowing down where they could have occurred).

(b) The doctor from entity 2 referred to what occurred prior to the hearing, noting that when she called patients A, B and D she “assured them of the confidentially of their identity and the confidentiality in relation to the doctor and organisation” and that when she met with patients A and B she “once again assured them of the confidentiality of their identity and the confidentiality in relation to the doctor and organisation.” The doctor noted that if Dr N lost her appeal and had to be named, this would be “contrary to what I discussed with the three patients I spoke to about this matter.”

[39] Following this, there were further submissions made on behalf of Dr N and the PCC as to whether further anonymisation was required and as to whether it was appropriate to contact the patients to seek their views. This led to the Tribunal’s minute dated 22 August 2013, in which the Tribunal advised that it was preferable that the Tribunal took no further steps until Dr N’s appeal was resolved.

Issue 1: Approach

[40] The Tribunal’s power to make an order suppressing the name of a practitioner who is before it is found in s 95 of the Health Practitioners Competence Assurance Act 2003 (the Act). It provides (so far as presently relevant):

95 Hearings to be public unless Tribunal orders otherwise

(1) Every hearing of the Tribunal must be held in public unless the Tribunal orders otherwise under this section or unless section 97 applies.

(2) If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may (on application by any of the parties or on its own initiative) make any 1 or more of the following orders:

(a) an order that the whole or any part of a hearing must be held in private:

(b) an order prohibiting the publication of any report or account of any part of a hearing, whether held in public or in private:

(c) an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at a hearing:

(d) an order prohibiting the publication of the name, or any particulars of the affairs, of any person.

...

[41] The Act provides a right of appeal to the High Court against “any order made by the Tribunal under section 95 in respect of the person or any decision to refuse to make such an order.”⁹ The appeal is “by way of rehearing”.¹⁰ The Court determining the appeal may confirm, reverse or modify the Tribunal’s order under s 95.¹¹

[42] Prior to the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar,¹² the view was taken in a number of High Court decisions that an appeal from a decision under s 95 was an appeal from the exercise of a discretion.¹³ This meant that the approach on an appeal was that set out in May v May.¹⁴ That is, to

_{succeed on an appeal, the appellant must show that the Judge acted on a wrong}

⁹ _{Health Practitioners Competence Assurance Act 2003, s 106(2)(d).}

¹⁰ _{Section 109(2).}

¹¹ _{Section 109(3)(a).}

¹² _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

¹³ Zimmerman v Director of Proceedings HC Wellington CIV-2006-485-761, 29 May 2007; Gilgen v Professional Conduct Committee HC Wellington CIV-2007-485-1710, 5 December 2007; see also Fox v The Nursing Council of New Zealand HC Wellington CIV-2006-485-832, 7 March

_{2007 in respect of the predecessor to s 95.}

¹⁴ May v May [1982] 1 NZFLR 165 (CA) at 170.

principle, or failed to take into account a relevant matter, or took into account an irrelevant matter, or was plainly wrong.

[43] Subsequent to Austin, Nichols, in a number of decisions starting with Anderson v The Professional Conduct Committee of the Medical Council of New Zealand,¹⁵ the view was taken that the approach in Austin, Nichols applies in respect of an appeal from a decision under s 95. That is, that the appellate court has the responsibility of arriving at its own assessment on the merits. This approach was taken because a suppression order can be made if the Tribunal “is satisfied that it is desirable to do so.” In Anderson v The Professional Conduct Committee of the Medical Council of New Zealand the Judge “inclined to the view” that this required “deliberative judgement, rather than the traditional type of exercising ‘discretion’.”¹⁶

[44] A third approach has also emerged post-Austin, Nichols. It was first put forward in ABC v Complaints Assessment Committee,¹⁷ and considered and accepted in Kewene v Professional Conduct Committee of the Dental Council to be the correct approach.¹⁸ Under this third approach the Austin, Nichols approach applies to the first part of s 95(1), namely whether having regard to the interests of any person and to the public interest, the Tribunal “is satisfied that it is desirable to do so”, whereas the May v May approach applies to the discretionary “may” component of the test.¹⁹

[45] In my view the two-step approach is not the correct one. I agree with the submission for the PCC that the requirement of desirability is inevitably subsumed

_{into the overall discretion of the Tribunal (that is, whether the Tribunal “may” make}

¹⁵ Anderson v The Professional Conduct Committee of the Medical Council of New Zealand HC Wellington CIV-2008-485-1646, 14 November 2008; Harman v Director of Proceedings HC Auckland CIV-2007-404-3732, 12 March 2009; Davey v The Professional Conduct Committee of the New Zealand Nursing Council [2012] NZHC 765; L v Professional Conduct Committee of the New Zealand Psychologists Board (2009) 20 PRNZ 92 (HC).

¹⁶ Anderson v The Professional Conduct Committee of the Medical Council of New Zealand, above n 15, at [31]. In Davey v The Professional Conduct Committee of the New Zealand Nursing

Council, the Judge said he would take that approach in the matter before him. Harman also followed Anderson. In L v Professional Conduct Committee of the New Zealand Psychologists Board the Judge cited and followed Anderson and Harman.

¹⁷ _{ABC v Complaints Assessment Committee [2012] NZHC 1901, [2012] NZAR 856 at [23].}

¹⁸ Kewene v Professional Conduct Committee of the Dental Council [2013] NZHC 933, [2013] NZAR 1055 at [32].

¹⁹ There is also conflicting decisions in the High Court as to the proper approach to an appeal from a penalty decision made by the Tribunal under s 101 of the Act. These decisions are discussed in Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354.

the order is determined by whether it is “desirable” to do so). It is difficult to envisage any case where the Tribunal would consider that the threshold of desirability is met and yet then go on to decline to make an order. That is because anything relevant to the discretion will have already been considered as part of the private and public interest considerations that are relevant to whether suppression is

desirable.²⁰ Counsel for Dr N did not press this approach as the appropriate one.

[46] If the two-step approach is not the correct one, the correct approach then depends on whether the appeal is a general appeal (from a decision involving assessment and judgement where there is only one legally correct outcome) or an appeal from the exercise of a discretion.²¹ As the Supreme Court has said, the distinction “is not altogether easy to describe in the abstract.”²² Moving from the abstract to the present context, there is no Court of Appeal or Supreme Court

authority on which kind of appeal this appeal is. In the absence of that authority, I consider that guidance can be taken from name suppression appeals in the context of criminal proceedings. It is well established that such appeals are appeals against the exercise of a discretion.²³

[47] In Kewene v Professional Conduct Committee of the Dental Council the Judge distinguished appeals from name suppression decisions under s 140(1) of the Criminal Justice Act 1985 on the basis that this provision simply provided that the Court “may” make a suppression order. In contrast s 95 requires the Tribunal “to be satisfied” that suppression is “desirable” having regard to the public and private

_{interests. However in my view there is little, if any, distinction in the nature of each}

²⁰ In Kewene v Professional Conduct Committee of the Dental Council, above n 18, at [38] Wylie J noted that, while there might be some overlap, “the threshold question [of desirability] focuses more on matters of general principle, for example, the public interest and the interest of others, including complainants, and the discretionary element to the decision will focus more on matters personal to the applicant and arising out of the charge, and the Tribunal’s findings in relation to it.” But the factors personal to the applicant will be considered as part of the Tribunal’s regard to “the interests of any person”. That was how the Tribunal (in my view, correctly) took those factors into account in relation to Dr N.

²¹ _{Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].}

²² At [32]. For discussion of the distinction between appeals against the exercise of a discretion and other general appeals see Palmer v New Zealand Police HC Wellington CRI-2008-485-112,

6 October 2008 at [59]-[62]; Ophthalmological Society of New Zealand Inc v Commerce

Commission [2003] 2 NZLR 145 (CA) at [33]-[38]; KJ Keith “Appeals from Administrative

_{Tribunals: The Existing Judicial Experience” (1969) 5 VUWLR 123 at 134-153.}

²³ Rowley v Commissioner of Inland Revenue [2011] NZCA 160, (2011) 25 NZTC 20-051 at [12] (leave to appeal to Supreme Court refused); B(CA860/10) v R [2011] NZCA 331 at [9]-[10]; Saggers v R [2012] NZCA 560 at [25]; Lawrence v R [2011] NZCA 272 at [11].

test. A judge exercising the “may” discretion will only do so if she is satisfied that it is appropriate to do so. Moreover, through including the specific requirement on the Tribunal to have regard to the private and public interests in order to determine if it is satisfied that suppression is desirable, s 95 does no more than set out the relevant considerations in general terms. Those same considerations are relevant when a Court decides whether to make a suppression order under the Criminal Justice Act.

[48] Section 200 of the Criminal Procedure Act 2011 has replaced s 140(1) of the Criminal Justice Act. It provides that the Court “may” make an order for suppression. It goes on to provide that the Court may make an order “only if the court is satisfied that publication would be likely to” have one of the consequences that are then set out. It therefore differs from both the Criminal Justice Act power and s 95 under consideration here. The discretion is narrowed in that it can only be exercised if one of the prescribed factors exists. There are High Court decisions

which have taken the view that the May v May approach continues to apply.²⁴

[49] The approach that has been taken in the criminal context does seem to me to fit with the nature of the decision the Tribunal is making under s 95. There are relevant factors (the private and public interests at stake) that must be taken into account. Those factors are balanced in order to form a view on whether suppression is desirable. It is not unlike a bail decision where the Court takes into account specified relevant factors (risks if bail granted, the nature of the offence, time to trial and so on) and forms a view on whether there is just cause for continued detention.

Such decisions are regarded as appeals against the exercise of a discretion.²⁵ It

contrasts with appeals where facts are determined and assessed against the applicable law to reach the judgment that is given.

[50] For these reasons I consider the May v May approach applies. Although I

_{have reached that view, it does not affect the outcome of the appeal.}²⁶

²⁴ JR v New Zealand Police [2012] NZHC 3091 at [7]; BL v R [2013] NZHC 2878 at [19];

_{Norsworthy v New Zealand Police [2013] NZHC 2550 at [8].}

²⁵ Dodd v R [2011] NZCA 490 at [26]-[27]; Hereora v R [2011] NZCA 491 at [19]-[20]; Olua v R

_{[2012] NZCA 177 at [12]; B v Police (No 2) [2000] 1 NZLR 31 (CA) at [6].}

26. As I go on to discuss the appellant has satisfied me on the stricter May v May approach. It follows that the appeal would have been allowed on the wider Austin, Nichols approach.

Issue 2: identity of other persons and entities with permanent name suppression

[51] As set out above²⁷ the Tribunal considered that there was a “modest risk” that if Dr N was named, members of the public would speculate as to where, of the four entities at which Dr N worked, the conduct occurred. It considered that this risk could be mitigated by suppressing the location. The PCC submits that the Tribunal was correct. It further submits that, having regard to the gravity of Dr N’s offending, the modest risk that the entities and staff might be identified could not outweigh the significant public interest factors that favoured publication of Dr N’s name.

[52] However I accept the submission for Dr N, that the Tribunal was wrong in its assessment that suppressing the location mitigates the risk that the entities and staff will be identified if Dr N’s name is published. In part that is because there is only one doctor registered in New Zealand with that name. The register shows Dr N as

practising at the town where entity 1 is located.²⁸ However, that town is close to the

city where the conduct occurred. Perhaps more significantly, the information before the Tribunal was that Dr N was “the face of” entity 2 and women’s health in the region for many years. The Tribunal recognised this when it made interim suppression orders in respect of entity 2, the nurse at entity 2, and entity 3, “to honour” the interim name suppression ordered in respect of Dr N. The Tribunal failed to take these relevant factors into account.

[53] The PCC submits that because Dr N worked at four places, members of the public could only ever speculate as to entities at which the conduct occurred. That may be so. But Dr N was most closely associated with entity 2 in this area of her work, because of her very long association with that entity. That made entity 2 the most likely place at which the conduct occurred and therefore the likely focus of that speculation. That informed speculation would very much undermine the permanent name suppression granted to entity 2. It would similarly undermine the name suppression granted to the nurse at entity 2. Like Dr N, the information before the

_{Tribunal was that she had a long association with entity 2 and would be readily}

²⁷ _{Refer [30] above.}

²⁸ I am unsure if that is still the case because I am told that Dr N has since sold that practice.

identifiable as involved in the events that were the subject of the charge. The

Tribunal did not take into account these relevant factors.

[54] The PCC accepts that a sufficiently interested person may be able to join a series of dots and rightly speculate about the particular places/location of offending. It submits that this must be the case in every case where a practitioner’s name is published in circumstances where other non-publication orders have been made. It refers to Anderson v The Professional Conduct Committee of the Medical Council of

New Zealand in support of this submission.²⁹ In that case a doctor was found guilty

of professional misconduct arising out of his drug dependency. The Tribunal ordered non-publication in respect of his family members but declined to grant him name suppression. The doctor appealed against the decision to decline him name suppression. One of the submissions advanced in support of that appeal was that if the doctor were named, then his family would be identified. The High Court Judge

rejected that submission. He said that:³⁰

It will always be the case that association of a family to a named transgressor will arise in the minds of those who know him/her and the family. It does not usually arise from the publication of the practitioner’s name in the collective mind of the general public. It is implicit in the orders that the Tribunal made that it did not intend non “publication” of information relating to the identification of the appellant’s wife and children, to mean that there be no publication of the practitioner’s name.

The Tribunal was alive to the issue of any effect upon the appellant’s wife and children given the terms of the order that it made and I am not satisfied that this was inconsistent with the refusal to suppress the appellant’s name. Naturally if any publication was to occur that there could be no reference to the appellant’s wife and children, nor could there by publication of any information contained in the decision which might seek either to identify them or to refer to the health/medical issues of Dr Anderson.

...

[55] Anderson v The Professional Conduct Committee of the Medical Council of New Zealand was a different situation than here. In that case it was implicit that in publishing the doctor’s name some people would identify the family. The Judge was satisfied that the Tribunal did not intend the non-publication order for the family to

_{override publication of the doctor’s name, even though it would mean that the family}

29. Anderson v The Professional Conduct Committee of the Medical Council of New Zealand, above n 15.

³⁰ At [54]-[55].

would be identified to some. The non-publication orders would remain effective for those who did not know the doctor’s family. In the present case, however, the Tribunal intended to suppress the identity of entities 2, 3 and 4 and the nurse at entity

2. Its decision that Dr N would not have name suppression was made on the basis of its view that there was only a modest risk, which could be mitigated, that the entities and the nurse would be identified. In ordering that Dr N’s name be published it therefore proceeded on a wrong assessment of what effect that would have on the intended suppression of the entities and related persons.

[56] The permanent suppression orders for these entities and related persons were made for what the Tribunal described as “very compelling factors of privacy and confidentiality”. That no doubt reflected the submissions put forward on behalf of the nurse at entity 2 and the entities: in particular, that those entities, and people who worked for them, could be subject to harassment in light of the very sensitive issues involved and the strong feelings that they engender in some members of the public; and that persons should not be discouraged from accessing the range of important health services provided by those entities. Given that the Tribunal accepted that there were very compelling factors in favour of the permanent suppression orders it made, I do not accept the submission for the PCC that those interests must be

outweighed by the strong public interests in publication of Dr N’s name.³¹

Issue 3: identity of the patients

[57] The Tribunal considered that there was “no real risk of patients being identified through Dr N’s name being published”.³² This was for three reasons:

(a) identifying particulars of the patients would not be published;

(b) no particular concerns were conveyed to the Tribunal about publication of Dr N’s name and the Tribunal considered that, if there

_{were concerns, they would have been conveyed to the Tribunal;}

³¹ As an illustration that strong public interests in disclosure can be outweighed by third party private interests, compare the strong public interest in publishing the name of a sex offender. That public interest is outweighed if the identity of the offender will lead to disclosure of the identity of the victim.

³² Refer [31] above.

[58] The PCC submits that the Tribunal’s assessment on this topic was correct. Counsel for Dr N submits, however, that, if Dr N’s name is published, the patients may be identifiable. He submits that it is not difficult to imagine that the patients may have disclosed aspects of their consultations to family or friends (eg that they went to entity 2 to check if they were pregnant), but not necessarily the specifics (ie that they were pregnant and were prescribed misoprostol to induce an abortion, or in the case of one patient that they were prescribed misoprostol in relation to an IUD insertion). He submits that if Dr N’s name is published, there may be people who will identify the patients that are referred to in light of the information they have been told.

[59] The Tribunal’s view was that there was “practically no possibility of patients being identified, even by family members or close friends” (emphasis added). In reaching that conclusion the Tribunal failed to take into account that publication of Dr N’s name is likely to identify the entities and location of where those events took place. That raises the potential that family members or close friends will identify a patient and thereby obtain private and confidential details about the patient’s consultation. That risk is not mitigated because Dr N saw many patients over the years. The concern is whether family members and close friends of the patients who are the subject of these charges, may identify the patients because of the information that is provided in the Tribunal’s decision and which is made publically available, given other information those family members or close friends may already have.

[60] The Tribunal was in error in discounting this risk on the basis that patients would have conveyed their concerns, if they had any, about publication of Dr N’s name. I accept the submission for Dr N that this conclusion was wrong because the patients had been told only that:

(a) the Tribunal would receive anonymised details of their consultations; (b) the names of the entities were subject to suppression orders; and

[61] The patients were not told that the hearing would be a public one, with members of the media present. Nor were they told that there could be reporting of the hearing in the media and through other channels. Nor were they told that the suppression of Dr N’s name might not continue. The Tribunal failed to take these considerations into account in reaching its view that there was no practical risk that the patients would be identified. Even if the risk that patients may be identified is small, and those that may identify the patients will be small in number, this is a factor entitled to considerable weight. This is because of the highly private and sensitive nature of the consultations. Because of its nature, it is information about which even family members and close friends may be unaware. Patients are entitled to expect that such confidences will be protected even in relation to family members and close friends.

Issue 4: unfairly impugns other practitioners

[62] Counsel for Dr N submits that the Tribunal erred in finding that the need to avoid unfairly impugning other practitioners was entitled to considerable weight. It is said that this overlooked that the Tribunal was suppressing details of the location of the misconduct and the entities concerned. It is said that with the extensive suppression orders in place these events could have occurred anywhere in New Zealand and therefore there was no actual risk of other practitioners being unfairly impugned.

[63] The PCC responds that it is highly likely that undue suspicion has already fallen on other medical practitioners in the region concerned. That is because of the two media reports in the local newspaper at the time of the hearing, and further media reports in newspapers and online after the 29 April 2013 hearing as well as on anti-abortion websites. The PCC also points out that Dr N was initially referred to by another letter of the alphabet, which happens to correspond with the name of a doctor practising in the same region.

[64] The PCC also submits that even if the region is not known, there are many other practitioners who may be unfairly impugned if Dr N’s name is not published.

It submits that the most striking group of doctors who may be unfairly impugned is limited to the number of certifying consultants. It further submits that any other doctor who practises in a small town (as further described in the Tribunal’s proposed decision) is potentially unfairly impugned.

[65] I have not been provided with any of the media or other forms of publicity that has already occurred. I therefore cannot assess the risk that the region concerned is known, and that other practitioners in that region have been unfairly impugned. I accept, however, that there must be some risk. I also accept that, more generally, other certifying consultants may be unfairly impugned. I acknowledge the point for Dr N that it is not clear that the Tribunal took into account that if the Tribunal’s decision is properly anonymised the events could have occurred anywhere. Nevertheless the risk (even if relatively small) that other practitioners may be unfairly impugned is entitled to weight in the balancing of the competing interests.

Balancing the factors

[66] As discussed, I consider that the Tribunal failed to take into account relevant considerations in its assessment of whether naming Dr N would identify the entities and other persons who have suppression. It also failed to take into account relevant considerations in its assessment that even family members or close family friends would not identify the patients. It may have failed to take into account a relevant consideration in its assessment of whether other practitioners would be unfairly impugned, although even a comparatively small risk that others would be unfairly impugned was still entitled to weight.

[67] In light of these errors I have considered whether the appropriate response is to refer the issue back to the Tribunal to reconsider the matter or whether I should now undertake the balancing exercise. A referral back might have been appropriate if the only issue was whether the patients might be concerned if Dr N’s name were published. They could then be invited to advise the Tribunal of any such concern. However, they were specifically assured that neither their details, nor Dr N’s name, would be identified. Further, in light of the compelling factors in favour of

suppression of the entities and other related persons (in particular the nurse at entity 2), and that publishing Dr N’s name is likely to seriously undermine those suppression orders, I consider that it is not necessary to refer the matter back. I am satisfied that this is one of those unusual cases where it is desirable that Dr N’s name be suppressed permanently because of the compelling interests that the other suppression orders recognise, notwithstanding the interests that favour publication of her name.

[68] In reaching that view, I note that open justice will be limited only to the extent that the decision will anonymise the entities and persons involved. Because of the other suppression orders it will be no more than speculation as to which doctor is involved, and the risk is low that the speculation will wrongly focus on one particular doctor. The decision otherwise gives a full account of what occurred, what that misconduct was, and the penalty imposed. I also note that the usually strong public interest in knowing the identity of the practitioner concerned is moderated to some extent in the unusual circumstances of this case. Dr N has sold her practice and is no longer a certified consultant. This is the first and only time that Dr N, who has practised for many years, has been charged with professional misconduct of any kind. It relates to a confined area of her practice. It has arisen in an area of practice about which views are strongly held. It appears that Dr N herself held strong views about women’s rights in this area and it is that which led her to act as she did. Penalties have been imposed in relation to her misconduct in this area. In these circumstances, while some of her patients might wish to know of Dr N’s conduct in this area, it cannot be said that their own consultations on matters which are outside this area will be impacted in any way.

[69] Finally I note the concern which entity 2 conveyed during the Tribunal process about the highly personal information that is included in the Tribunal’s decision, albeit in an anonymised form. It remains for the Tribunal to consider this when it finalises anonymising its decision, and it would be open to the Tribunal to consider that the interests in favour of publication outweighed these privacy interests. However the concern that has been conveyed demonstrates the importance that the existing suppression orders are not undermined by publication of Dr N’s name.

Result

[70] The appeal is allowed. Name suppression is granted. It is necessary to fairly protect the persons and entities who/which are subject to permanent suppression orders. That is a proper and compelling basis on which name suppression should be made even though it means that the public will not know the identity of the doctor whose conduct was found to be illegal and inappropriate.

Mallon J