H v Director of Proceedings [2014] NZHC 1031 (16 May 2014)

Last Updated: 5 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1110 [2014] NZHC 1031

IN THE MATTER	of an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003
BETWEEN	H Applicant
AND	DIRECTOR OF PROCEEDINGS Respondent

Hearing:	15 May 2014
Appearances:	C L Garvey for Applicant A L Martin for Respondent
Judgment:	16 May 2014

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 16 May 2014 at 11.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Southern Legal, Auckland

Counsel: C L Garvey, Auckland

_{Copy for: Health and Disability Commissioner, Wellington}

H v DIRECTOR OF PROCEEDINGS [2014] NZHC 1031 [16 May 2014]

[1] The Applicant, to whom I refer to as Dr H, seeks orders for stay and for interim suppression of his name and identifying details pending determination of an appeal to this Court.¹

[2] By decision dated 28 March 2014, the Health Practitioners Disciplinary

Tribunal (“Tribunal”) found Dr H guilty of a charge of professional misconduct.

[3] In a separate decision dated 24 April 2014 (“penalty decision”) the Tribunal

made orders to the following effect:²

30. Dr H’s registration shall be cancelled, with effect from the date which is 15 days after the date on which this decision is served on Dr H.

31. For the period until the order of registration (sic) takes effect, there is a condition on Dr H’s practice to the effect that there must be a chaperone present for any female consultation; a notice to this effect is to be placed in the reception area. These arrangements are to be approved by the Medical Council.

32. Censure: the Tribunal must express its significant disapproval of the serious misconduct it has been required to review in the present case.

[4] The Tribunal also ordered Dr H to pay sums on account of costs and disbursements incurred by the Director of Prosecutions and the Tribunal; discharged an earlier interim order it had made prohibiting publication of Dr H’s name; and made orders concerning the publication of its decision.

Appeal

[5] By notice of appeal dated 9 May 2014, Dr H appeals against the finding of professional misconduct, against the orders referred to in [3] above and as to the orders as to costs and disbursements. On the same date, Dr H also made the

_{application with which I am concerned (“application”).}

¹ Interlocutory Application for Stay of Substantive Parts of Penalty Decision of Health Practitioners Disciplinary Tribunal, and for Interim Name Suppression of Appellant’s Name and Identifying Details dated 9 May 2014.

² Affidavit of H in Support of Application for Stay and Name Suppression sworn 9 May 2014, at 104.

Stay

[6] The Respondent does not object to an order for stay in the terms sought in

[1](a) the application. I make that order accordingly.

Name suppression

[7] Paragraph [1](b) of the application concerns suppression but does not correctly express the order that Dr H seeks. There being no objection, I granted leave to counsel for Dr H to amend the application so as to seek an order prohibiting publication of Dr H’s name and all identifying details pending determination of his appeal.

[8] The Director opposes the application for name suppression.

Section 112 Health Practitioners Competence Assurance Act 2003

[9] The Court has discretion to make the order sought by Dr H pursuant to s 112

Health Practitioners Competence Assurance Act 2003 (“Act”). Section 112 provides:

112 Orders as to publication of names or particulars

(1) On any appeal under this Part, the appropriate court may, if, in its opinion, it is proper to do so, prohibit the publication of the name or particulars of the affairs of a health practitioner or any other person.

(2) In deciding whether to make an order under subsection (1), the court must have regard to—

(a) the interests of any person (including, without limitation, the privacy of any complainant); and

(b) the public interest.

[10] Accordingly, in deciding whether it is proper to make an order pursuant to s 112(1), it is necessary to have regard to the interests of affected persons and to the public interest.

[11] The events giving rise to the charge before the Tribunal concerned a female patient and occurred between 26 February 2010 and 22 December 2010. The allegations which the Tribunal found proved may be summarised as follows:

(a) First, Dr H failed to set and/or maintain appropriate professional boundaries. In particular, the Tribunal determined that he had sent numerous texts of a personal and/or sexual nature to the patient’s cellphone number(s) and that he had made numerous telephone calls to landlines at her residential address.

(b) Secondly, that Dr H breached the sexual boundaries in the doctor/patient relationship through sexual impropriety in a number of serious ways. There were seven particulars to this aspect of the charge, all of which the Tribunal held were proved, except for the allegation that Dr H had engaged in sexual intercourse with the patient.

[12] A feature of the present case is that Dr H does not dispute that he sent the texts and made the telephone calls referred to in [11](a). Before the Tribunal, and I understand on appeal, Dr H’s case was that the texts and telephone calls were intended for a third party and not for Dr H’s patient. The Tribunal did not accept this account.

Interests of affected persons

[13] Dr H is a sole practitioner in general practice. He has a large patient base, with more than 3,500 enrolled patients. These patients seek their primary care at Dr H’s practice, with other patients attending the practice on a casual basis. A significant proportion of Dr H’s patients are from low income families and his charges are modest. Dr H is presently seeking to engage a locum to take over the practice for him, at least until the appeal is resolved. Dr H is in his sixties, has been in medical practice since the mid 1970s and has worked in his practice since the early 1990s.

[14] Counsel for Dr H submits that publication of Dr H’s name would render his appeal nugatory, as its effect would be to destroy Dr H’s reputation and his practice, requiring his patients to seek medical care elsewhere.

[15] I do not accept that submission in so far as it concerns Dr H’s patients. Given the order for stay, Dr H will be able to continue practising pending determination of his appeal. Publication would mean that Dr H’s patients were able to make their own decision as to whether they wished to continue to consult him. I accept, however, that publication would be likely to diminish Dr H’s standing and reputation and diminish the practice and the value of its goodwill. Dr H employs a number of staff and any adverse affect on the practice might affect their employment.

Public interest

[16] I turn now to consider the public interest in knowing Dr H’s identity, given

the finding that has been made against him.

[17] First, I accept the submission of counsel for Dr H that the risk Dr H presents must be seen in context.

[18] The events giving rise to the charge concerned one patient and the conduct that was proved occurred three years’ prior to the Tribunal’s determination. It also concerned conduct that took place outside Dr H’s practice.

[19] The case against Dr H did not allege clinical incompetence or, for instance, inappropriate behaviour with numerous patients or in the course of consultations. Counsel also refers to the fact that, on notification of the charge, neither the Medical Council (“Council”) nor the Tribunal took steps to intervene in Dr H’s practice. Counsel relies on this as evidence of the confined risk that Dr H presents. I accept that submission.

[20] Secondly, counsel for Dr H submits that the immediately relevant sector of the public, that is Dr H’s patients, is protected to some extent by the order of the Tribunal referred to above, and which are now effective. Dr H is required to have a

chaperone present whenever he undertakes a consultation with a female patient. Also, a notice which reads as follows is now displayed in his practice:

[Suppressed]

[21] As appears from [3] above, the Tribunal ordered that these arrangements be approved by the Council. Dr H submitted the wording of the notice to the Council as required, and the Council was satisfied with its content.

[22] Thirdly, Dr H and Counsel undertake to prosecute his appeal expeditiously. Counsel for Dr H and for the Director estimate it will take no more than one day to hear the appeal. Having made enquiries, I am satisfied that the appeal can be heard promptly.

[23] Counsel for the Director does not contend that there is a need for the public at large to know now that Dr H has been found guilty of misconduct. There is force in his submission, however, that patients of Dr H, and particularly female patients, have an interest in making an informed decision as to whether they continue to consult him. I accept that submission but, in my view, it does not outweigh the matters to which I have referred, particularly as the appeal can be heard promptly.

[24] Counsel for the Director also submits that an order for suppression pending appeal would merely delay what is the inevitable publication of Dr H’s name. That is because Dr H acknowledges that he should not have sent the text messages he did which, on his view of it, allowed a patient to see intimate and unprofessional communications. Accordingly, counsel for the Director submits that some censure and publication will occur, even if Dr H succeeds on appeal.

[25] I do not accept that submission. I cannot anticipate the outcome of the appeal or the orders that the Court might make.

Result

[26] Having regard to all of these matters on balance, I am satisfied that it is proper to make the order sought. I make an order prohibiting publication of Dr H’s

name and any identifying particulars pending the determination of his appeal or further order of the Court, whichever is earlier.

[27] I direct that the appeal shall be heard in this Court at 10 am on 30 July 2014. One day has been allocated for the hearing. Counsel are to liaise and submit a timetable for the steps preparatory to the appeal, such timetable to be filed no later than 3 pm, 22 May 2014.

[28] Costs are reserved.

..................................................................

M Peters J