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New Zealand Health Practitioners Disciplinary Tribunal |
Last Updated: 28 October 2014
Level 13, Mid City Tower, 139-143 Willis Street
PO Box 11-649, Wellington, New Zealand
Telephone: 64 4 381 6816 Facsimile: 64 4 802 4831
Email: gayfraser@hpdt.org.nz
Website: www.hpdt.org.nz
DECISION NO: 132/Med07/65D
IN THE MATTER of the Health Practitioners
Competence Assurance Act 2003
AND
IN THE MATTER of a charge laid by the Director of
Proceedings pursuant to Section
91 and 100 of the Act against DR YZ, Registered Medical Practitioner of xx
BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HEARING held at Wellington on Monday 27 August 2007.
TRIBUNAL: Miss S M Moran (Chair)
Dr J Barry-Walsh, Ms J Courtney, Dr R J Fenwicke and
Dr J L Virtue (Members)
Ms K Crosby (Executive Officer)Ms K O’Brien (Stenographer)
APPEARANCES: Ms T Baker, Director of Proceedings
Mr A H Waalkens QC and Ms A Credin, counsel for Dr YZ
Introduction
1. Dr [YZ] (hereinafter referred to as “Dr YZ” and “the doctor”) is a registered medical practitioner, residing and practising in xx as a general practitioner.
2. On 1 May 2007 the Director of Proceedings (“the Director”) laid a disciplinary charge against the doctor the details of which are set out below at paragraph 7.
3. On 1 June 2007 the Director filed an application pursuant to s.95 of the Health Practitioners Competence Assurance Act 2003 (the Act) seeking permanent orders prohibiting the publication of the names and identifying details of two witnesses whom she proposes to call; and on 8 June 2007 counsel on behalf of the doctor filed an application pursuant to the same section seeking interim orders prohibiting publication of the name of the doctor and those of his witnesses and of any documentation which might identify the doctor.
4. Suppression orders (permanent and interim) were made by this Tribunal, regarding both applications and are set out at paragraph 67 of its written decision of 13 August
2007. However, for ease of reference, those orders are annexed to this decision as schedule A.
5. On 10 August 2007 Dr YZ filed applications for orders:
(a) That this proceeding be stayed.
(b) That certain items of evidence from some witnesses on behalf of the Director of Proceedings be deleted.
6. This decision determines these applications.
The Charge
7. The charge alleges that –
(a) Between 29 May 1987 and 31 December 1988 Dr YZ had a sexual relationship with [X] (then known as [X]) while she and/or her husband and/or her children were his patient or patients;
and/or
(b) Between 6 June 2006 and 7 June 2006, once a complaint had been made to the Health & Disability Commissioner by [the complainant] (hereinafter referred to as the complainant) about a sexual relationship between Dr YZ and Ms X, Dr YZ contacted Ms X and encouraged her not to respond to the Commissioner’s letter that had been sent to her and/or not to supply any medical records if she had them.
And that the conduct alleged in particulars 1 and 2 either separately or cumulatively amount to professional misconduct.
8. Mr [] is the complainant in this proceeding and the former husband of Ms X. The identity of both are the subject of permanent suppression orders. Ms [X] is hereinafter referred to as “Ms X” and Mr [] as “the complainant”.
9. Dr YZ is defending the charge.
Summary of evidence to be called by Director of Proceedings
10. It is not the function of the Tribunal for the purposes of the applications presently before it to become enmeshed in an analysis of the evidence proposed to be called or to make observations which might reflect on the credibility of any evidence. However, it is necessary for the Tribunal to set out, albeit briefly and in summary, some background and the evidence proposed to be called by the Director in order to give sense to this decision.
11. It needs to be explained that the procedure which the Tribunal follows is that once a charge is laid the Director will file written statements of the witnesses she proposes to call. The health professional, who is the subject of the charge, is then provided with the opportunity to file statements in opposition. The purpose of exchanging
written statements in advance of a substantive hearing is to give each other notice of the case which it will have to meet. Once the matter proceeds to a substantive hearing then each witness will be called before the Tribunal to confirm the written statement either on oath or affirmation and then to have the evidence tested by cross- examination by counsel for each party with the members of the Tribunal having the opportunity to ask questions of each witness by way of clarification and explanation.
12. With regard to the first particular of the charge, the complainant’s proposed evidence is that he met Ms X in 1978; they subsequently married; there are three children of their relationship; they were residing in what has been described as a “small town” when they met Dr YZ who, in about 1985, became their family doctor; Dr YZ performed a medical procedure on him and provided him with other medical services; Dr YZ was consulted in 1987/1988 regarding his elder daughter who had a serious illness; in 1988 he and his wife were experiencing some problems in their marriage; they attended counselling with a Dr F; he (the complainant) found such sessions to be unproductive; around this time his wife told him that she had been having an affair with Dr YZ; he felt “shattered’ and “humiliated” on learning this; at the time he first undertook counselling he was not aware that the affair had been going on for a year previously but had thought it had just been for a much shorter period; he was not aware Dr YZ and his wife continued to see each other following the disclosure; he found a job in a bigger centre; he and his wife had discussions about the issue of custody if she were to stay behind; he did not want to be parted from his children; he and his wife came to an agreement to move to another area where they stayed together for a further nine years before they parted.
13. With regard to the second particular of the charge, the complainant states that he received a call from Ms X in 2005 that Dr YZ had contacted her because Dr YZ was about to take office in a public organisation and might contact him; he did not want to see Dr YZ barred from practising medicine but thought the doctor did not have the integrity required to hold the office; he thought about it for a while; he raised it with a medical practitioner who advised him if he were not happy about it he should complain which he did later that year expressing (in very strong terms) his views that he did not think Dr YZ was suitable for the position. The matter was subsequently investigated by the Health & Disability Commissioner who referred it to the Director of Proceedings who laid the present charge.
14. With regard to the first particular, Ms X states that Dr YZ became their family GP around 1985 and that all her family consulted him. She referred to some of the medical procedures/services which Dr YZ undertook with regard to her husband, herself and their children, and in particular their elder daughter; her children were very young at the time; she and her husband had always had a difficult relationship; their problems were ongoing; there was a strong mutual attraction between the doctor and herself and that they were both responsible for the affair which started around June 1987. She refers to their social contact and how the affair continued until almost the end of the following year. She refers to her friend Ms T, a health professional working at the same centre as the doctor, who told Ms X it was wrong for Dr YZ to continue treating her while having an affair with her; she (Ms X) did not want to hear this; she asked Dr YZ about it who reassured her she could continue to have him as her doctor; she wanted to keep seeing him and did not want to have to explain to her husband why she was changing doctors; she was stressed and knew she could not continue to see Dr YZ as her doctor; she was overdue for a smear test; her friend Ms T persuaded her to see Dr [F] (hereinafter referred to as Dr F) which she did combining the appointment for the test with counselling regarding the state of her marriage and her relationship with the doctor; around November 1988 Dr YZ told Ms X that his wife knew of the affair; that before the matter became known in the community Ms X told her husband; and they agreed to move with their children to another location where they remained for approximately nine years before they separated. Ms X has since remarried.
15. Ms X has been able to produce a page of Dr F’s notes dated from 4 August 1988 to January 1989 involving some seven consultations, the first of which records a smear test and a “chat about some domestic difficulties” and thereafter references to marriage and stress factors and a domestic crisis; it also records that the complainant consulted Dr F about their domestic difficulties and that the husband “has taken a Christian stance”.
16. With regard to the second particular Ms X has referred to Dr YZ contacting her in
2005 regarding a public position he was seeking. The purpose of his call was to ensure she would be discreet if she were asked by the media about their affair; she gave him that assurance but reminded him their affair had been anything but discreet and was known in the community at the time of it; she understood from his call that
he would be contacting her former husband whom she rang to let him know to expect a call from Dr YZ. She refers to a further telephone call from the doctor in the last quarter of 2005 informing her that he now held the position he had been seeking and that her former husband had made a formal complaint about him. In March 2006 she received a letter from the Health & Disability Commissioner regarding that complaint. On or about 7 June 2006 at 8.30am she states Dr YZ telephoned her to inform her the complaint was to be investigated when she confirmed to him she had received a letter from the Commissioner; that during their conversation she made notes in her work diary; that Dr YZ encouraged her not to send in any information or medical records and told her it would all go away if the records got “lost”; the doctor wanted her to talk to his solicitor or to a solicitor of her choice for whose services he would pay if she felt anxious; that the doctor said what had happened 20 years ago was a long time and he was now a different person and that she had not really been his patient but that he had only treated her for the odd thing; that she refuted this and told him if she were asked about it she was not going to lie. Ms X also referred to a purported call Dr YZ made to her the following day. Ms X states that while she is not proud of what happened in the past, she does not wish the doctor any harm, nor seeks or wishes to be vindictive but is amazed and upset at the way he has responded to her former husband’s complaint.
17. The Director proposes to call some seven further witnesses.
18. Ms [T] (hereinafter referred to as “Ms T”) was a self-employed health professional renting a room at the centre where Dr YZ and other medical practitioners worked at the time, having with them a close collegial relationship; she and Ms X, with whom she became friends, shared a lot of information about their daily lives; although Ms X did not have any particular health problems and does not recall her being a frequent visitor to the doctor, she does remember Ms X taking her daughter a lot to Dr YZ during the time that they were having an affair; and she has no doubt that Ms X and her family were patients of Dr YZ. She refers to the affair between Ms X and the doctor which she stated commenced in the middle of 1987 which she thought was understandable as she knew how unhappy Ms X had been but was very concerned that Dr YZ continued to be the general practitioner for Ms X and her family; she raised this with Ms X on a number of occasions informing her that it was inappropriate, unethical and unacceptable for the doctor to continue seeing the
family as his patients; she recommended to Ms X she undergo some marriage guidance counselling directing her to Dr F; while she has not been friendly with the doctor she does not harbour any grudge against him and until contacted by the Commissioner, during his investigation, she had not made any statement or contacted anybody about the matter.
19. Ms A (hereinafter referred to as Ms A and whose name and identity is already the subject of a permanent suppression order) is a registered nurse who was residing in the same town as Ms X and her family at the material time when they formed a friendship which remains to this day. In her part time work as a nurse she had occasional dealings with Dr YZ; she recalls when the affair between Ms X and the doctor began (around the middle of 1987) and provides the reason for her recollection; that the affair was known in the community and there was talk about it which, in her opinion, was due to the fact that it was an extra marital affair rather than because Ms X was Dr YZ’s patient.
20. Ms [B] (hereinafter referred to as Ms B and whose name and identity is already the subject of a permanent suppression order) became friends with Ms X when they were all living in the same town during the 1980s and also remain friends to this day. She describes the nature of their friendship as they had babies at the same time and had some similar interests; she knew that Ms X was Dr YZ’s patient because Ms X and she were close and talked about a lot of things; she recalled Ms X telling her about her elder daughter’s medical problem and that she had consulted the doctor about it; Ms X told her at some stage in 1987 or 1988 of the affair she had been having with the doctor but was not surprised as there had been speculation about it in the town; and she was more concerned about Ms X’s husband than Ms X being the doctor’s patient.
21. Ms [C] (hereinafter referred to as Ms C) was the practice nurse at the medical centre where the doctor worked between 1983 and 1988 and states that Ms X and her family were patients of Dr YZ. She remembers Ms X having appointments from time to time and while she has no specific memory of being present during the doctor’s examinations for Ms X it is likely that she would have been. She states unequivocally that at all times Dr YZ was professional and that she had no concerns regarding the nature of the doctor’s relationship with Ms X or anyone else during the
procedures he undertook. While she recalls the rumours about Ms X and the doctor being involved with each other she does not recall the affair becoming public and states that she has always held the doctor in high regard.
22. The Director proposes to call two doctors, one of whom has also sworn an affidavit on behalf of Dr YZ. The other doctor (Dr [M] (hereinafter referred to as Dr M) states that Ms X has been a patient of his practice since May 1989 (after she left the town with her husband where they were previously residing). He has been able to find only a single page of notes sent from her previous general practitioner (Dr F). He has also made contact with the medical centres where Dr YZ was practising at the relevant times asking for copies of any other notes they may hold but they do not have any other notes. The doctor does not have any previous notes regarding the care of Ms X’s children prior to them going to his practice in 1989 other than the one page of notes from Dr F (already referred to).
23. The final person the Director proposes to call is Mr Scott, a senior investigator employed by the Health & Disability Commissioner who has annexed to his statement his initial letter in May 2006 to the doctor advising him of the complaint which had been made by the complainant.
24. At the hearing the Director produced medical records (which had come into her possession a few days before) of the elder daughter covering the period 18
November 1987 to around 4 May 1989. They are the notes of the Hospital Board to whose hospital the daughter was admitted for specialist care. Documents in the file indicate that between 18 November 1987 and 26 October 1988 Dr YZ was the daughter’s general practitioner and that Ms X was closely involved in her daughter’s care.
Application for Stay by the doctor
25. On 10 August 2007 Dr YZ applied for an order staying the disciplinary charge against him or alternatively such particulars or parts of the charges the Tribunal determines on the grounds that –
(a) There has been an excessive and unreasonable delay on the part of the
complainant between events in issue and in making the complaint.
(b) The events in question are so historical that the doctor is prejudiced in being able to adequately prepare a defence/response to the same and/or that there is a real and likely risk that the doctor will not receive a fair hearing.
(c) The medical records with respect to the alleged consultations, the subject of the allegations, for Ms X are no longer in existence.
(d) Similarly that the medical records with respect to the consultations relating to the complainant and the children of Ms X and the complainant are no longer in existence.
(e) The medical records of other doctors who initially took over the medical care of Ms X and the complainant are no longer in existence or available including those of Dr F.
(f) It is in the interests of justice that the disciplinary charge be stayed. (g) In all the circumstances the order sought is reasonable.
26. In support of his application the doctor swore an affidavit on 13 August 2007; and (when the hospital’s medical records of the elder daughter were produced) a further one on 23 August 2007.
27. Dr YZ has stated that the excessive delays on the part of the complainant in making his complaint has seriously prejudiced his ability to adequately defend himself against the charge; and that while the complainant was aware in November 1988 of the matters which have given rise to his complaint he did nothing about the matter until August 2004, some 17 years after the alleged events when he wrote his first letter of complaint. He knows of no issues or factors or impairment which would have prevented the complainant from making his complaint at an earlier time. He states it appears that the apparent trigger was the imminence of Dr YZ taking on an official position.
28. As well as the prejudice caused by the delays Dr YZ considered it unfair of the complainant who had held off making his complaint until doing so at a point when it maximised the damage and harmed him and his reputation. The doctor referred to the efforts his counsel had made to obtain medical and other records and further information particularising the allegations made against him in some of the witness briefs.
29. Dr YZ has stated that he did have a sexual relationship with Ms X but not when he was her general practitioner. He has referred to the fact that the area in which they were living was a small community and that in such places the local doctor from time to time will see or consult with all residents or their families in the township.
30. Dr YZ has referred to some of the statements and some of the witness briefs which he asserts are incorrect or mistaken, including the dates on which they were alleged to have occurred, and that if he had access to the medical records then it would establish the truth of what he is asserting but without them he is significantly prejudiced. This includes the statement made by Ms X that her sexual relationship with the doctor commenced in July 1987 and terminated at the end of 1988 whereas the doctor states it started in December 1987. Dr YZ also refers to other inconsistencies in the witness briefs of the complainant, Ms X, and others. He has stated that while there was some medical contact between himself and members of the family and in particular the complainant who underwent a particular procedure and the elder daughter who suffered from a particular illness, both those events were well prior to any sexual relationship with Ms X but if he had the medical records this would prove what he was asserting.
31. The doctor emphasised that the relationship he did have with Ms X was entirely equal and referred to her interview with the Health & Disability Commissioner where she confirmed this; and did not accept that while she had marriage difficulties (as did he) she was vulnerable; to the contrary was an extroverted and confident woman.
32. The doctor does not accept Ms X’s assertions of medical consultations she had with him both prior to and during their sexual relationship and stated that without the medical records he was significantly prejudiced in responding to those particular allegations.
33. When some medical records from the relevant hospital board regarding the elder daughter were produced by the Director a few days before this hearing, Dr YZ swore a second affidavit essentially rejecting the suggestion by both Ms X and the complainant had been critical of his management of their elder daughter’s particular condition.
34. Two further affidavits were filed in support of Dr YZ’s application for a stay, both of whom are medical practitioners. The first practitioner, Dr [C] (hereinafter referred to as Dr C), has deposed he was the only doctor at the time who had a practice in the small town where the complainant’s family resided until May 1985 when he left the area. Prior to that he was on leave from April 1984 until March
1985. He said he had some recollection of Ms X but without access to her or the family’s medical records he was unable to recall now whether he treated her or her family. He added that it was not uncommon for members of the community to travel outside of the area for medical treatment but that it would be common for him to see patients who may also be the patients of other general practitioners without that patient transferring to him his or her care. This was particularly so given the extensive amount of time he was “on call” for residents in the small town.
35. The second medical practitioner, Dr M, deposed she acquired the practice from Dr C when he left the area in May 1985 taking over all Dr C’s patients a few of whom did transfer to the medical centre where the doctor (who is the subject of the charge) practised but they were small in number and without records she finds it difficult to do other than estimate. She has a vague recollection of the complainant’s name but does not remember her nor her husband at the time, nor any of their children.
36. With regard to the sexual relationship between Dr YZ and Ms X (1987/1988) Dr M states she has no recollection of consultations with patients going back to that era or around that time and would need available medical records at the time to know whether or not she has consulted with Ms X or any of her family; and would find it extraordinarily difficult for any GP to reflect back to that period of time and recall with certainty whether or not he or she had seen any particular patient unless medical records were available to confirm this.
The law relating to stay
37. There is no real dispute between the parties as to the relevant legal principles.
38. Both the Director and Mr Waalkens accept the Tribunal has jurisdiction to stay/strike out charges before the Tribunal if it is satisfied the charge in question constitutes an abuse of the Tribunal’s processes.
39. The Tribunal is obliged to comply in all cases before it with the principles of natural justice arising both at common law and under its statutory regime. Section 90 of the Act states that the provisions set out in Schedule 1 apply to the Tribunal and its proceedings. Under Schedule 1 clause 5(3) states that the Tribunal must observe the rules of natural justice as does section 27(1) of the New Zealand Bill of Rights Act
1990. Additionally, clause 5(1)(a) of the Schedule empowers the Tribunal (subject to the Act and any regulations made under it) to regulate its procedures in any manner it thinks fit which permits the Tribunal to stay a charge which it finds contravenes the principles of natural justice or which constitutes an abuse of its processes.
The purpose of disciplinary proceedings
40. Under the Act section 3 provides that its principal purpose is
... to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
Abuse of process/delay
41. Both parties cited the Court of Appeal decision of Moevao v Department of Labour [1980] 1 NZLR 464 where there was a full discussion regarding abuse of process (but where the Court declined to intervene).
42. In that case the President of the Court (Richmond P) traversed the history of the common law which cautioned that the power to stay must be used sparingly and only in the clearest cases. He observed:
... However it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of (p 470 L.51 to 471 L.1).
43. Per Woodhouse J:
... It is not always easy to decide whether some injustice involves the further consequence that a prosecution associated with it should be regarded as an abuse of process. And in this regard the Courts have been careful to avoid confusing their own role with the executive responsibility for deciding upon a prosecution (at p 475 L.51 to 54).
and
... It is the function and purpose of the Courts as a separate part of the constitutional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase “abuse of process” by itself does not give sufficient emphasis to the principle that in this context the Court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general (p 476 L.11 to 18).
44. Per Richardson J:
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Courts’ processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence and the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by concern that the Courts’ processes may lend themselves to oppression and injustice. (p.481 L.31 to 43)
And
The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law. As it was put by Frankfurter J in Sherman v United States [1958] USSC 87; 356 US 369,
380 (1958): “Public confidence in the fair and honourable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake”. (p.482 L.6 to 13)
And
The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for
law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court. (p.482 L.21 to
27)
45. The leading cases on the principles applicable to strikeout/stay on the grounds of delay have involved criminal prosecutions. While disciplinary proceedings are not criminal prosecutions (Re A medical practitioner [1959] NZLR 782; Gurusinghe v Medical Council of New Zealand [1988] NZHC 528; [1989] 1 NZLR 139, Guy v Medical Council of New Zealand [1995] NZAR 67) nevertheless the principles developed in the criminal courts concerning strikeout/stay on the grounds of delay have been adopted in the disciplinary arena (E v Medical Practitioners Disciplinary Tribunal and CAC (Unrep. HC Wellington, 190/99 24.4.01, Goddard J; L v Dentists Disciplinary Tribunal (CIV-2006-485-807 High Court Wellington Lang J. 6 November 2006).
46. In W v R, (1998) 16 CRNZ 33 Randerson J summarised the principles relevant to staying criminal charges on the grounds of delay. His Honour referred to R v The Queen [1996] 2 NZLR 111 Tipping J, S v R Unrep. HC Hamilton T17/93, 10.9.93
Penlington J, and R v Steedman Unrep, HC New Plymouth T9/97, 14.11.97
Robertson J, when identifying the following principles:
“(1) That an order for a permanent stay of proceedings in the exercise of the Court’s protective inherent jurisdiction on the grounds of delay is only to be made in exceptional cases.
(2) The the onus will normally be on the accused to show on the balance of probabilities that, owing to the delay, he will suffer prejudice to the extent a fair trial is not impossible.
(3) That how the accused discharges that onus will depend on all the particular circumstances of the case.
(4) That where the period of delay is long it can be legitimate for the Court to infer prejudice without proof of specific prejudice.
(5) That ultimately the pertinent issue is whether despite the delay an accused can in the particular circumstances of the case still receive a fair trial.
(6) The reasons for the delay and its consequences should be examined. (7) The merits of the case are relevant to the overall assessment.
(8) There may arise two types of unfairness to the accused. Specific prejudice such as through the death or unavailability of a witness or general prejudice through long delay such that it would be unfair to put the accused on trial at all.
(9) Logically, general prejudice in the sense described must be prejudice which is additional to that which the accused would have faced through tolerable delay.
(10) In considering whether it is fair to put the accused on trial at all through general prejudice arising from long delay, the process will normally involve the balancing of the accused’s interests with those of the public and the complainant. Bearing in mind the starting point of no statutory limitation as to time, a case must be “truly extreme” before the inherent jurisdiction can be invoked on this basis. That is, on the basis of general prejudice.
(11) The Court should exercise its discretion in a flexible manner so as to secure the overall objective of ensuring the accused receives a fair trial despite delay, and, as Robertson J put it in R v Steedman ensuring the trial will be “permeated with the necessary integrity”.”
47. Randerson J also referred to the following observations of Tipping J in R v The
Queen when he said:
“1. The accused is entitled to a stay if he can show that the delay has caused specific prejudice jeopardising a fair trial to the extent that there is a serious risk of a miscarriage of justice if the trial proceeds.
2. Even if he cannot show that, the accused is entitled to a stay if, in all the particular circumstances, the delay is so long and unjustified that it would be an abuse to put him on trial at all.”
[72] As the authorities demonstrate, the principles to be applied in applications for stay in the context of both criminal and disciplinary proceedings may in many cases be very similar. They are not, however, identical.
[73] Charges that are laid under the general criminal law are brought in the interests of society as a whole. All citizens have an interest in ensuring that allegations of criminal offending are properly investigated and, where the allegations are substantiated, the offenders are punished. Slightly different principles apply to complaints that are made to a professional disciplinary tribunal. The general public does not necessarily have any interest in
ensuring that such allegations are the subject of disciplinary proceedings. That interest is held only by the sector of the public that deals with, or has an interest in, the profession in question. That sector will, of course, include members of the profession.
[74] The policy underlying disciplinary proceedings was explained by Gendall J in Ford in the following terms (at 61) [Ford v Medical Practitioners Disciplinary Tribunal High Court Wellington CP268/01 18 February 2002
Gendall J]:
The disciplinary provisions of the Medical Practitioners Act 1995 are designed to protect the public and maintain proper professional standards and ensure that medical practitioners are accountable to their patients and the public. Members of the public (and members of the medical profession are also members of the public) are entitled to expect that doctors who are charged with offences have those charges heard after proper inquiry before what is, in the context of this case, an expert tribunal assisted by a legal assessor.
[75] The distinction between the approach to be taken in deciding an application for a stay of criminal charges and an application for a stay of disciplinary proceedings was explained in Walton v Gardiner 1993) 112 ALR
289, the decision to which the Tribunal itself referred (at para 14). In that
case the Court said:
The question whether disciplinary proceedings in the tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of a disciplinary proceeding in the tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. [Emphasis added by the Court]
Submissions on behalf of the Doctor for a Stay
Particular 1
49. Both counsel made written and oral submissions and referred to a number of legal authorities. Any reference to those submissions in this decision does not cover every matter raised; and nor is every case cited referred to here. However, all matters raised and all legal authorities cited were carefully considered and to which the Tribunal had regard..
50. Mr Waalkens repeated the grounds upon which the application for a stay was made and elaborated on them.
51. Mr Waalkens submitted that there were highly significant distinctions to be made between criminal cases and a disciplinary case as here and referred to the case of L v Dentists Disciplinary Tribunal (above) in this regard; that this was reinforced by section 3 of the Act, the principal purpose of which was protection of the public; that there was no hint in any of the evidence called by the Director in this case for a need to protect the public or that the doctor was a danger to the community such that this ought to be a case that seriously raised concerns to initiate the protective purpose of disciplinary proceedings. He submitted that while involvement of other persons such as the complainant and Ms X were important they must by necessity take a “back seat” to the main focus of the proceedings which was all about Dr YZ.
52. Mr Waalkens referred to the problematical issue raised by a doctor being expected to defend a case without his own medical records which was no fault of his but was a consequence of the excessive delay taken by the complainant in raising his complaint and which was highly prejudicial to the doctor. In this regard he also referred to the context of the consultations as to when they occurred and what they involved. He referred to the Medical Council’s policies in 1994 on sexual abuse in the doctor-patient relationship which emphasised the vulnerability of the patient and that the guiding principle was that there be no exploitation of the patient or their immediate family members; and that each case must be examined in relation to the degree of dependency between patient and doctor and the duration and nature of the professional relationship. He referred to Ms X’s own concession that the relationship between them was equal but submitted that regardless of this the extent to which the consultations were said to have occurred was of direct relevance. He also referred to the policy of the Medical Council in March 2004 referring to sexual boundaries and the doctor-patient relationship which provided that any harm was often linked to the intensity of the doctor-patient relationship, for example, the length of it, the frequency of contact and the type of care provided. The policy also referred to where a former doctor-patient relationship was very minor or temporary a total ban on any subsequent relationship was unfair and unrealistic, for example, where a doctor might treat a minor condition such as a sprained ankle in a one-off situation. He submitted that it was unfair for Dr YZ to have to face a charge when
he was not able to establish the context because he needed his medical records to do so. In this regard Mr Waalkens made frequent reference to the Medical Practitioners Disciplinary Tribunal’s decision concerning Dr Wiles (155/00/65D, 5 March 2001) which dismissed the disciplinary charge even though it found the doctor had embarked on a sexual relationship (with a former patient) and that the context and timing of the relationship determined the outcome which the doctor was able to prove because he had access to the medical records. The Tribunal has considered that case which can be distinguished on its facts.
53. Mr Waalkens cited the legal authorities (many of which are referred to above) which enunciate the legal principles. Mr Waalkens also referred to certain decisions of this Tribunal’s predecessor (Medical Practitioners Disciplinary Tribunal) in addition to Dr Wiles’ case which dealt with specific instances of doctors who had faced charges alleging inappropriate sexual contact with a patient such as the case of CAC v M (252/03/107C, 22 October 2003). Mr Waalkens referred to another medico-legal case of R v K (in the District Court at Christchurch 16 August 2002) involving a dentist facing a criminal trial on 11 counts of indecent assault on 10 patients whom he was treating at the time where the police file of its investigation was lost.
54. Mr Waalkens referred to complainant delay concerning which the criminal law was more sensitive to criticism; and that invariably the cases involving applications for a stay of proceedings arose out of cases where there had been historical delay and which were almost always on the subject of sexual abuse. He stated that the criminal law recognised a general bias against an over-analysis of reasons for complainant delay but that two points emerged, that is, (a) it was appropriate for the Courts to consider the reason for the delay and there was an expectation that attention would be given to the reasons why delay had occurred, which he submitted was entirely absent in the present case; and (b) more importantly the criminal law principles for not over-analysing delay did not apply in this case.
55. Mr Waalkens referred to the recent High Court decision of R v Russell (CRI 2006-
092-11084 High Court Auckland 19 September 2007) where Stevens J stated at paragraph 31:
In my view a Court may consider the reasons for delay, but must bear in mind that an absence of explanation for delay alone is an insufficient basis for a stay, as outlined by Blanchard J in R v O cited above.
56. He referred to the observation of Elias J (as she then was) in T v Attorney General (see above para. 52) that sufficiency of reasons for delay and complaint are not to be elevated too highly, but also referred to other observations of the learned Judge.
57. Mr Waalkens also referred to other authorities relied upon by the Director of Proceedings which he submitted also supported the doctor’s application for a stay. In this regard he referred to the case of S v R (cited above) which was a criminal trial involving a defendant charged with sexually abusing children of tender years in a familial setting and where Penlington J observed that in his opinion a delay of 24-25 years was of sufficient length to raise a presumption of prejudice; and that he saw little difference between that and a delay on 20 years. In this context Mr Waalkens also referred to the case of Ford where two of six cases were stayed.
58. Mr Waalkens referred to improper purpose and submitted that one must seriously question the purpose of the complainant in this case delaying the making of the complaint for some 17 years and that it was apparent from his complaint letters that his sole motivation in doing so was because of the imminence of Dr YZ’s appointment to an official position within a medical organisation. He stated that the consequential harm to the doctor in raising the complaint so long after the event at this particular stage of his career was unfair and unreasonable and had all the hallmarks and impression of a vindictive decision; and that as no explanation or reasons had been provided for the 17 years delay the Tribunal was entitled to draw the appropriate adverse inference as a consequence. In this context Mr Waalkens referred to a number of cases in the criminal jurisdiction involving allegations of some form of sexual abuse where there had been delay. Among the cases cited, he referred to R v Accused [1993] 2 NZLR 288 (CA) where the Court observed that where the period of delay is long it can be legitimate for the Court to infer a prejudice without proof of specific prejudice and whether that inference should be drawn or whether in all the circumstances of the particular case it is unfair to place the accused on trial must depend on the particular circumstances. He referred to the fact that many of the cases concerned with applications for stay involve allegations where the defence is simply a straight denial which are very commonly cases
involving allegations of familial sexual abuse and where the defence raised is that the alleged conduct simply did not take place. Similarly, where these sorts of cases occur in the medico-legal environment involving allegations where a doctor has been accused of improperly touching or sexually violating a patient during a clinical examination, the defence will likewise be a straight denial because a doctor is not going to record in his notes that he has done so.
59. In contrast, Mr Waalkens submitted that this case was different in that Dr YZ’s defence was not simply a case of straight denial of a sexual relationship, as he had admitted there had been one, but it was the context within which that relationship had developed that was central to his case; that is to say, was the doctor her general practitioner; when was that; what was the nature of that doctor-patient relationship at the time of consultations and so forth; and that the doctor’s ability to defend those allegations in the absence of medical records was a significant prejudice.
60. In this regard Mr Waalkens referred to a number of cases including H v The Queen (T 100/96 High Court Auckland, Anderson J 24 June 1996) where the Judge stated the Court had difficulty in accepting that it was reasonable that the complainant should not complain after 33 years and that at some stage inexplicable delay becomes inexcusable delay and in that case the Judge found it had reached that point. This observation was made in the context that the defence in that case would be impeded because of the deaths of certain persons whose evidence might have been relevant and the loss of insurance company records as to the loss of a boat where the alleged rape was said to have occurred and which may have supported the accused.
61. In this regard Mr Waalkens also referred to the recent case of Dr Fernando who was tried before a jury in the High Court at New Plymouth facing 37 counts of sexual offending against 12 former female patients spanning the period 1981 to 2002. His application for stay was unsuccessful. The High Court Judge observed that where delay jeopardises the right of an accused to a fair trial the question for the Court was whether, despite the delay, the accused can in the circumstances of the case still receive a fair trial; and that ultimately it was an exercise in balancing the interests of the State and the individual.
62. Mr Waalkens traversed the affidavit evidence filed on behalf of Dr YZ and referred certain pieces of the evidence and made submissions regarding those pieces of evidence when the legal principles were applied to them.
63. He referred to the passage of time denying the doctor the benefit of specific memory of alleged consultations between himself and the complainant, Ms X, and their children, and that the delay was so excessive that the doctor was prejudiced in being able to adequately prepare a defence with respect to the true nature of any alleged doctor/patient relationship which was a direct consequence of the delay as well as the fact that the relevant medical records were no longer in existence and accordingly there was a real and likely risk that the doctor would not receive a fair hearing.
64. Mr Waalkens referred to the other doctors who had sworn affidavits and who had difficulty remembering because of the time which had elapsed.
65. He also referred to inconsistencies from the witness briefs filed by the Director of Proceedings and matters which the doctor could remember and therefore challenged, commenting on the unreliability of the memories, in particular, of the complainant and Ms X; and also the vagueness of evidence filed by the Director as to the details of consultations alleged to have occurred.
66. He stated that without a stay Dr YZ’s ability to obtain a fair trial was compromised to such an extent that a stay of the disciplinary proceeding was the only appropriate course of action to adopt.
Particular 2
67. Mr Waalkens also sought a stay of the matter raised in Particular 2 and submitted that while it did not suffer for delay, it nonetheless was an issue that was inextricably linked to the fact of missing records and the prejudice to Dr YZ. He stated the doctor did not accept the allegations made in this particular and that it had always been processed by both the Health & Disability Commissioner and the Director of Proceedings as part of the whole case alleged against the doctor and in particular the primary issue alleging a sexual relationship during a doctor/patient
relationship. He submitted that as the first particular ought never to have been the subject of a charge given the unfairness caused to the doctor it was wrong in principle for the case to now simply proceed on the basis of the second particular alone. He stated that the Health & Disability Commissioner Act 1994 recognised a stand alone process available to the Commissioner under section 73 which provided that it was an offence liable on summary conviction to a fine not exceeding $3,000 for a person who, without reasonable excuse, obstructed, hindered or resisted the Commissioner or any other person in the exercise of their powers under the Act; and that this was the appropriate procedure if the matter were to be taken further.
Submissions by the Director of Proceedings in opposition to stay
Particular 1
68. The Director similarly referred to the relevant case law and legal authorities. She referred to the protective jurisdiction of the Act designed to protect the public as its primary purpose.
69. The Director submitted that a further purpose was to maintain the integrity of the profession as held in Dentice v The Valuers Registration Board [1992] 1 NZLR 720,
724-725:
The disciplinary procedure
Although, in respect of different professions, the nature of the unprofessional or incompetent conduct, which will attract disciplinary charges, is variously described, there is a common thread of scope and purpose. Such provisions exist to enforce a high standard of propriety and professional conduct; to ensure that no person unfitted because of his or her conduct should be allowed to practise the profession in question; to protect both the public, and the profession itself, against persons unfit to practise; and to enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them; see, generally, In Re a Medical Practitioner [1959] NZLR 784 at pp 800, 802, 805 and 814. In New Zealand, such provisions exist in respect of medical practitioners, barristers and solicitors, dentists, architects, pharmacists, real estate agents and a number of other professions and callings, as well as valuers. See Medical Practitioners Act 1968, Part III; Law Practitioners Act 1982, Part VII; Dental Act 1988, ss45-68; Architects Act 1963, ss41-45; Pharmacy Act 1970, Part
III; Real Estate Agents Act 1976, Part VII. The very nature of the professions mentioned indicates the significance of the subject matter for the public. Obviously and distinctly, it is in the public interest that in respect of such professions and callings, high standards of conduct should be maintained.
70. The Director addressed the concept of abuse of process as in Moevao (above).
71. She referred to the cases dealing with delay citing in particular extracts from U v R (above), E v Attorney General (above), and R v O (above) and submitted that the reasons for delay are more relevant to the Tribunal in its task of determining whether or not a charge has been proved; and that it is not the role of the Tribunal to become engaged in assessing credibility of witnesses at this stage but that this task is reserved for the substantive hearing when the Tribunal must consider matters of credibility, evidential sufficiency and disciplinary threshold. In this regard she referred to the observations of Gendall J in Ford (above) that while the merits are not legally irrelevant it will only be in rare cases that they become relevant in a stay application.
72. The Director referred to the case of L v Dentists Disciplinary Tribunal (above) where it considered the issue of delay and that while there was an element of specific prejudice arising from the absence of notes in that case it was not such that the charge should be stayed on that basis alone. The charge was stayed on the ground that it had no utility, referring to the distinction between criminal proceedings and disciplinary proceedings because of the protective nature of the latter. In L, she stated there were two specific features being the age of the allegations and the factual matrix from which the relationship had arisen; and that the Court placed emphasis on the contact between the parties arising through their family relationship and the sexual intercourse occurring at places and times totally divorced from the dentist’s dental practice. The Judge also referred to the fact that this was the only complaint, and that given the dentist’s age and circumstances it was unlikely he would ever be in a position in the future to form a similar relationship with a person who was also a patient.
73. The Director accepted the chronology of events in this case which Mr Waalkens had produced. With regard to general (or presumed) prejudice, the Director accepted that the interval between the events and the complaint being made approximately 18
years later (and now almost 19 years since the complainant found out about the relationship), was a significant length of time but submitted not of itself long enough to give rise to a presumption of general prejudice.
74. She referred to dicta in Ford (above):
[25] In considering delay and whether prejudice can be inferred, or whether it arises so that a person should not be brought on trial or subject to hearing, arbitrary time limits of course cannot be met, but there will come a point in time where the delay is simply too long. So for example in R v W [1995] 1
NZLR 548 (CA) the delay was up to 29 years and it was acknowledged to be lengthy, but not regarded by the Court of Appeal to have led to a miscarriage of justice; whereas in C v R [1994] 2 NZLR 621 (HC), Smellie J stayed a prosecution of a 71 year old man where the delay had been between 28 and 41 years. It is very much a question of individual assessment and degree bearing in mind the particular circumstances of each case and the Court or Tribunal has to exercise its discretion in a flexible manner so as to secure the overall objective of ensuring that the accused, or respondent, receives a fair trial or hearing despite the delay. Whether you speak of “general prejudice’ (inferred from long delay) or “specific prejudice” established through disappearance of evidence, unavailability of witness and the like, the test remains the same: can a fair hearing be obtained despite the delay?
75. In Ford, she submitted there was no general or presumptive prejudice where there had been delays of up to 19 years between complaints of inappropriate conduct in the course of consultation and the complaint; and that in L v Dentists Disciplinary Tribunal a period of 44 to 50 years did not give rise to a general prejudice to a degree necessary for stay.
76. Under specific prejudice, the Director addressed the matter of missing records and noted that clause 5 and 6 of the Health (Retention of Health Information) Regulations 1996 a health provider was obliged to retain records no longer than 10 years (to which Mr Waalkens had also referred).
77. She stated that no medical records for Ms X or the complainant or their children relating to that period had been located except for the records of the elder daughter. In this regard she referred to the case of L v Dentists Disciplinary Tribunal where the Judge found an element of specific prejudice was caused by the absence of dental records and did not consider the death of certain witnesses relevant. She stated that the difference with the present case was that Ms X (whom she described
as a reluctant witness) remembered that the doctor was her doctor as did the complainant. She referred also to the proposed evidence of Ms T who was a health professional using rooms at the same centre as the doctor at the relevant time and a friend of Ms X who was very concerned that Ms X was having an affair with her doctor and for that reason encouraged her to see a different practitioner (Dr F); and that Ms X confirmed she was given that advice by Ms T.
78. The Director referred to Ms A who worked part time as a nurse until mid 1987 and was a good friend of Ms X and recalled Dr YZ being Ms X’s doctor as did another friend of Ms X, namely Ms B.
79. The Director referred to the evidence of Ms C who was a practice nurse at the centre when the doctor was there and who recalls the complainant, Ms X, and their family being patients of the doctor.
80. The Director referred to the medical records from the local hospital board for the elder daughter which cover the period 1987 to 1988.
81. The Director, when referring to the L case, stated that the Judge did not have the benefit of knowing what the evidence of the people who had since died would be, whereas in the present case these witnesses are able to give relevant evidence.
82. The Director submitted that it cannot be the case that one cannot prove whether or not someone is one’s doctor if there are no medical records; and it cannot be that there is a blanket ruling that where there are no medical records there is no other way of proving that someone was one’s doctor. She submitted that there are various other ways to prove this and that while the existence of medical records is a very significant factor and will carry a great deal of weight, in the present case there are a number of witnesses who are in a position to give that evidence.
83. With regard to the reference by Mr Waalkens to the matter of the place where the alleged events took place being a “small town” the Director submitted it did not actually mitigate the circumstances because it is the very nature of a small town which means that those relationships of trust must be observed and kept intact and that the harm that can be done to the husband of a patient, or in this case the
complainant who was himself a patient, can be very great because of the humiliation and the abuse of trust.
84. With regard to the submission of Mr Waalkens that the context and nature of the consultations was essential, the Director submitted that this was not a case where Ms X was alleging that she was being treated for depression or that she had consulted Dr YZ in relation to her marital problems. She stated those clearly are issues which go towards the severity of a matter and can be taken into account (in a case where it is relevant) when assessing the disciplinary threshold and penalty. She added that the nature of the consultations are described in Ms X’s brief of evidence and the fact that Dr YZ was her family doctor which was really the crux of the matter. She stated it was not suggested that Ms X was dependent on the doctor in the way that sometimes patients are dependent on their general practitioner but that it was suggested that there was a relationship of trust that the doctor held as the family practitioner for all the family and that that relationship of trust was overlooked.
85. With regard to Dr YZ having referred to inconsistencies in witness statements, and having compared these with prior statements and pointing to unreliability of their memories, the Director submitted that the appropriate time to explore the inconsistencies of statements and the reliability of witness memories was during the course of the hearing and referred to the Court of Appeal decision in T v Attorney- General (above) which held it was inappropriate to conduct a voir dire.
86. The Director referred to the MPDT decision of M (above) where the Tribunal discussed this very issue referring to “considerable scope for cross examination” but did not consider that it gave rise to specific prejudice without the evidence being tested.
87. The Director submitted that Particular 2 was relevant to Particular 1 in that at a substantive hearing she would be asking the Tribunal not only to find Particular 2 proved but also to draw an inference from it that the doctor was aware that he in fact was Ms X’s doctor.
88. With regard to the utility argument she reminded the Tribunal that it was on this ground that the charge in the L case was stayed and that in the present case it could be distinguished from the L case on several grounds.
89. With regard to the aspect of utility, she submitted that unlike the dentist in the L case the doctor here was not retired and continues to practise; that the complainant here was motivated by his concerns at Dr YZ holding a public profile leadership role; that it was accepted in the L case that the relationship arose out of a social context rather than out of a doctor/patient relationship; and that when considering the public interest, the observation of the Court in Dentice (paragraph 69 above) should be borne in mind.
Particular 2
90. With regard to Particular 2, the Director submitted that when a matter is referred to her under section 49 of the Health & Disability Commissioner Act 1994 she has to consider whether or not to issue disciplinary proceedings, or proceedings in the Human Rights Review Tribunal, or both, and may also consider whether or not to institute proceedings under section 47 of that Act which is very broad including, as it does, representation in any Court or Tribunal seeking to be heard on one’s own account. She added it would be open to the Director to institute proceedings in the District Court under that section as well by way of summary jurisdiction. She added that, having said that, in her submission it did not mean that the way in which Mr Waalkens was suggesting the matter might be heard was the only way in which it might be addressed.
91. By way of example, the Director referred to the case of the Director of Proceeding v Harriet Martin who had made alterations to her clinical notes retrospectively but had claimed they were made contemporaneously and which the Tribunal viewed as a serious matter.
92. She submitted that whether Particular 2 is proved will be a matter for the Tribunal (at a substantive hearing) to decide on the balance of probabilities, having heard all the evidence; and that if it were proved there was a basis on which the Tribunal could find that it amounted to professional misconduct.
93. The Director stated that there are circumstances in which the Tribunal may consider matters that might otherwise be brought before another forum. She gave an example of a nurse assaulting a patient where that will not always be tried in the criminal jurisdiction but heard before a Tribunal on a charge of professional misconduct.
94. She submitted it was appropriate that the conduct which is the subject of Particular 2 be heard before the Tribunal.
95. The Director added that while to some extent Particular 2 is linked to Particular 1, there was still a basis on which the hearing of it could proceed and it would be a matter of credibility as between Ms X and Dr YZ.
THE DECISION ON STAY
Particular 1
96. The Tribunal is not satisfied on the balance of probabilities Dr YZ has made out his case that, owing to delay and the absence of medical records, he will suffer prejudice to the extent that a fair trial will now be impossible.
97. The Director rejected Mr Waalkens’ suggestion of improper person on the part of the complainant in making the complaint giving an impression of a vindictive decision; and that no explanation or reasons had been provided for the 17 year delay.
98. The Tribunal is of the view that there was explanation of a kind by the complainant.
In his witness statement he said he had become involved in Christianity and that he had attended at the doctor’s home and told him he knew of the affair and forgave him. He said he was concerned to keep his family together and moved with his then wife to another area where they remained together for a further nine or so years before they separated.
99. In 2005 it was Dr YZ himself who revived the matter, according to Ms X’s witness statement, by contacting her and asking her to be discreet about their earlier affair if she were approached by the media as he was applying for an official position in the medical profession. In the belief that Dr YZ would be contacting her former husband, Ms X contacted him herself and told him of the doctor’s call.
100. The complainant in his witness brief stated he did not wish to see Dr YZ barred from practising medicine but felt strongly about him holding a public position because he did not think he had the integrity required. He took advice from a medical practitioner who advised him, if he felt unhappy about it, to complain which he did on 16 August 2005 when he wrote to the NZ Medical Association.
101. With regard to Randerson J’s principles that “(6) The reasons for the delay and its consequences should be examined” and “(7) The merits of the case are relevant to the overall assessment”, the Court of Appeal per Elias J. in T v Attorney General (CA175/97, 27 August 1997) stated:
Whilst absence of excuse for delay and the strength of the Crown case may in some circumstances be relevant to an assessment of whether the accused has been prejudiced by delay, such cases are likely to be rare. The sufficiency of reasons for a delay in complaint are not to be elevated too highly. Unless relevant to prejudice suffered by the accused as a result of the delay, deficiency in excuse will not amount to abuse of process in itself although it may in some cases be critical to the jury’s assessment of a complainant’s credibility. That is not a proper matter for the Judge, except in truly exceptional circumstances in exercise of the 347 jurisdiction. In most cases the course here adopted of conducting a voir dire on the reasons for delay will not be appropriate. Indeed that dangers of such an approach are illustrated by the findings made by the District court Judge which go to the merits of the complaint, rather than the question of delay.
102. In R v O [1999] 1 NZLR 347 the Court of Appeal held (at p.350 L.49 to p.351 L.5):
An absence of adequate explanation for lengthy complainant delay will not be good reason for stopping a prosecution if a fair trial is possible, except perhaps where the alleged offending is minor. Serious crime should normally be the subject of prosecution notwithstanding that a victim has chosen to delay making a complaint. That dilatoriness may, of course, assume significance as a matter of weight of evidence but, if there is a proper basis for a prosecution and a trial can be conducted fairly, mere absence of justification for the delay will not be a sound basis for a stay.
103. In Ford v Medical Practitioners Disciplinary Tribunal (above) Gendall J stated:
[28] In R v The Queen Tipping J observed that merits are not legally irrelevant, but I adopt the view of the Court of Appeal that it will be only in rare cases that they become truly relevant in a stay application. For example, if the case is frivolous or vexatious or if on any view of the matter the combination of factors such as delay, opportunity to complain, minor or insubstantial nature of allegations or their general rather than specific nature,
are all matters, when viewed in the round persuade a Tribunal to enter a stay, then a Court may do so very much as it does in the exercise of its criminal jurisdiction under s.347 of the Crimes Act.
104. As Fraser J observed in Hamelsveld v District Court at Timaru and the Attorney
General (M11/95 High Court Timaru 29 September 1995) at pp.6 and 7:
Some assistance can be obtained from examples of how the principle has been applied from time to time but the resolution of any case must, in the end, be dependent upon its own facts and the inferences which can be properly drawn from them.
105. Although there has been significant complainant delay, in all the circumstances presently before it, the Tribunal is not persuaded the complaint was for an improper purpose or the delay was of such a nature or extent as to warrant a stay of the proceedings.
106. With regard to medical records, initially when the parties were preparing for the present hearing, the only medical notes which were available were one page from the records of Dr F which show that Ms X consulted him between 4 August 1988 and January 1989. As well there are references in the witness briefs of Ms X and the complainant regarding consultations with Dr F in 1988 and also in the witness brief of Ms T who encouraged the complainant to see Dr F.
107. Also available, but produced only a few days before this hearing, are the hospital board medical records for the elder daughter of the complainant and Ms X. On their face, those medical records indicate that the doctor was the general practitioner for the elder daughter during the period 18 November 1987 to around 4 May 1989. This period includes the period referred to in particular 1 of the charge.
108. Accordingly, while Dr YZ’s medical records are not available there are some medical records which are still in existence and which cover the relevant period.
109. There are also witnesses available to give evidence who were present at the relevant time.
110. Ms X with whom the doctor had a sexual relationship (although there is conflict as to when that relationship commenced and whether the doctor was her general
practitioner at the time) is available to give evidence. In her witness brief (although at this stage untested as are all the other witness briefs filed on behalf of the Director) she refers to some consultations within the period of the charge and that the doctor was her general practitioner at the time.
111. There is the evidence of the complainant who states that Dr YZ was the family doctor.
112. There are the witness briefs of Ms T, Ms A and Ms B, all of whom were friends of
Ms X.
113. Ms T was the self-employed health professional working at the same centre as Dr YZ and who advised Ms X that it was inappropriate for the doctor to continue seeing the family as his patients while Ms X and the doctor were having an affair and eventually persuaded Ms X to consult Dr F.
114. Ms A is a registered nurse who refers to Ms X and Dr YZ having an affair at the material time and Ms X being his patient and gives reasons for her recollection.
115. Ms B states that she was aware of Ms X and Dr YZ having an affair when she was his patient.
116. Ms C was the practice nurse at the medical centre where Dr YZ worked between
1983 and 1988. She states that Ms X and her family were patients of the doctor.
117. There is the evidence of the doctor himself where he accepts that he did have a sexual relationship with Ms X but does not accept he was her general practitioner. He does recall seeing her for an upper respiratory tract infection but says it was at least two years before the sexual relationship started and that in June 1987 she made a surprise and unusual visit to his surgery purportedly for a medical consultation but that he did not become her general practitioner and at no time was such. He states that to put that into context it was and remains not unusual in a small town such as the one where they resided for the local doctor to sometimes see and consult with all residents in the township or their families.
118. The doctor also has some recall of the elder daughter’s illness but states that the absence of her records makes it very difficult for him to respond to the points that are being made and particularly the emphasis that he was heavily involved as her doctor. That concern however is, to some extent, met with the production of the hospital board records covering the relevant period.
119. Dr YZ has acknowledged in his first affidavit that there has been some medical contact between himself and members of the family, in particular the complainant and the elder daughter, but that those events were well prior to any sexual relationship with Ms X.
120. With regard to Mr Waalkens’ submission that the context and type and nature of the consultations is essential, there is some evidence available concerning this. There is the evidence of Ms X who stated in her interview at the office of the Health & Disability Commissioner that her relationship with the doctor was an equal one; and in her witness brief has stated that she considers she and the doctor were both responsible for the affair. Further, the Director has stated in her submissions to this hearing that Ms X has provided some information of the nature of the consultations and accepts this is not a case where Ms X is alleging she was being treated for depression or that she had consulted Dr YZ in relation to her marital problems and that those were matters which could be taken into account when assessing disciplinary threshold and [if that threshold were crossed] penalty.
121. The Tribunal accepts the Director’s submission that it cannot be that where there is an absence of medical records (or some of the medical records) that there is a blanket ruling that there is no other way of proving that someone was a person’s doctor at a particular time.
122. With regard to Mr Waalkens’ submission that there are inconsistencies between the witnesses’ briefs and prior statements and also instances of unreliability of memory, the Tribunal refers to the legal authorities which establish that the appropriate time to test those particular issues will be by way of cross-examination during a hearing of the substantive charge.
123. As Gendall J observed in Ford (above) at para. [25]:
“... It is very much a question of individual assessment and degree bearing in mind the particular circumstances of each case and the Court or Tribunal has to exercise its discretion in a flexible manner so as to secure the overall objective of ensuring that the accused, or respondent, receives a fair trial or hearing despite the delay. Whether you speak of “general prejudice” (inferred from long delay) or “specific prejudice” established through disappearance of evidence, unavailability of witnesses and the like, the test remains the same: can a fair hearing be obtained despite the delay?”
124. And at para. [41]:
“... Inferred prejudice arises out of such a long passage of time that actual prejudice may be inferred in some rare circumstances. But where that line should be drawn is not easy and cannot be imposed in an arbitrary way as the Tribunal correctly observed. I observe that (which has been often said) stays on the basis of presumptive prejudice are rare but can occur.”
125. With regard to the matter of utility of the proceedings, the Tribunal accepts that there are several distinguishing features between the present case and that of the L case where the High Court stayed the disciplinary proceedings. In the latter case, the complaint was historical in that it related to events which were said to have occurred between 44 and 49 years previously by the time the complaint was made. By then, the dentist was over 70 years of age and retired. There the Court held that the overwhelming picture which emerged was of a relationship between two related persons arising independently of L’s dental practice and to which his profession had only the most tenuous of links. Significantly, the Judge there determined that the Tribunal was justified in concluding that no general prejudice arose in that case and that no specific prejudice arose as a result of the deaths of the three potential witnesses; and although he had held that an element of specific prejudice arose as a result of the absence of notes, he also concluded that the prejudice was not of itself sufficient to justify the charge being stayed. It was the issue of utility which the High Court held was the reason for the staying of the charge due to the historic nature of the matter, the age of the dentist, the fact that he was no longer in practice, and the fact that his practice and his professional had only the most tenuous links to the relationship. The Judge concluded it appeared to him inherently unlikely, given those circumstances, that the dentist would ever be in a position in the future to form a similar relationship with a person who was also his patient. The distinguishing factor in the present case is that while there was a delay of some 17 years or so before the complainant made his complaint, there is a significant difference between
that length of time and that with which the L case was concerned. Further, the doctor in this case is not retired and continues to practice; the complainant has stated his motivation was his concerns at the doctor holding office in a leadership role within his profession; and (although untested at this stage), the witness statement of Ms X and others state that there was both a social relationship and a doctor/patient relationship in existence at the same time. The Tribunal does not overlook that the doctor disputes this and does not draw any conclusions on the merits or otherwise of whose recollection of events is correct, but are matters which should be heard at a substantive hearing.
127. As was stated by Gendall J in Ford:
“there is a public interest in ensuring that those charged with criminal or disciplinary offences not be subject to the jeopardy of trial or adverse results if they are prejudiced in the defence of the allegations to such an extent that a fair hearing could not be obtained. But there is a balance public interest factor. The disciplinary provisions of the Medical Practitioners Act 1995 are designed to protect the public and maintain proper professional standards and ensure that medical practitioners are accountable to their patients and the public. Members of the public (and members of the medical profession are also members of the public) are entitled to expect that doctors who are charged with offences have those charges heard after proper inquiry before what is, in the context of this case, an expert Tribunal ... The Court has to balance the interests of the public ensuring that professional persons are required to answer disciplinary charges properly brought by their professional body or whether the doctor’s personal, private or professional interests required that they be exempted from such a hearing through a failure or prompt adjudication.”
Particular 2
129. The Tribunal accepts and agrees with the submissions of the Director regarding
Particular 2.
130. Further, there is no compelling or persuasive reason why the matter raised in this particular should be heard in a forum other than that of the Tribunal.
131. The Tribunal is satisfied that Particular 2 should not be the subject of a stay.
APPLICATION TO REMOVE EVIDENCE PROPOSED TO BE CALLED BY THE DIRECTOR
132. Mr Waalkens has submitted that certain evidence proposed to be called by the
Director is inadmissible and should be removed.
Statement of Complainant
133. Mr Waalkens states that the last sentence in the fourth paragraph of the letter marked “A” which the complainant proposes to introduce as an exhibit should be disallowed. It records:
“I understand too, that there have been other like indiscretions with other women” should be deleted.
134. He submits they are gratuitous slurs and have no relevance to the particulars of the charge. The Director consents to its deletion.
135. The Tribunal is of the view that it is irrelevant. There will be an order for its deletion and that it not be referred to in evidence at the hearing.
136. With regard to paragraph 11 regarding a suggestion of compromise care for the elder daughter on the part of the doctor, Mr Waalkens has submitted there is no basis to the allegation which is speculative.
137. The Director has submitted that it might show the child’s care was compromised as a result of the relationship between the doctor and Ms X and why such a relationship can be harmful.
138. The Tribunal does not accept there is any sound basis for the Director’s submission.
The standard of the doctor’s care regarding the elder daughter is not an issue and does not form part of the charge. The Tribunal agrees with Mr Waalkens.
139. There will be an order for its deletion and that it not be referred to in evidence at the hearing.
Statement of Ms B
140. Mr Waalkens has submitted that all of the evidence of Ms B should be deleted because it is vague and imprecise; does not meet any of the criteria for “recent complaint” and is not permitted corroborative evidence.
141. The Director states it is relevant and is not lacking in particulars. Ms X was a close friend of Ms B in whom she confided. While the Director conceded Ms B’s statement was not as strong as some of the other statements it was still relevant being one of a number of statements of persons who were closely involved with the family at the time who say their recollection was that the doctor was Ms X’s GP.
142. The Tribunal agrees with the Director’s submission and is of the view that the statement of Ms B should not be struck out.
Statement of Ms X
143. With regard to paragraph 27 purporting to assert what three of her friends knew Mr Waalkens has submitted that this is hearsay. It is for the friends to give this evidence. The Director consents to it being deleted.
144. The Tribunal agrees that this paragraph should be deleted.
145. With regard to the following paragraphs or parts thereof Mr Waalkens submitted they should be deleted:
(a) Paragraph 37 alleging discussion about another relationship – third sentence starting “he told me ...” to the end of that paragraph ending “didn’t think he was involved”.
(b) All of paragraph 38 as to an alleged other relationship. (c) Paragraph 43 as to inference of other relationships.
146. It is understood from the submissions made by Mr Waalkens that there may be some dispute as to whether these communications took place at all and, if they did, what was actually said.
147. Mr Waalkens submitted that this evidence was irrelevant and ought not to be permitted. He referred to the case of Doherty v Judicial Committee of the Veterinary Council of New Zealand and others CP 37/00 High Court Wellington 15.3.2001
Doogue J.
148. The Director submitted that those passages should be admitted because (a) all those statements were made by the doctor himself, (b) a statement by one against self- interest was an exception to the hearsay rule, and (c) were especially relevant when considering the utility of the proceedings and the protective element of disciplinary proceedings.
149. As Doogue J observed in Doherty when referring to the Complaints Assessment
Committee –
[26] ... from the moment that it permitted the introduction of evidence that could only be prejudicial, that could not be relevant and could not be probative in respect of any of the issues arising in relation to the charge, it both went beyond its powers to permit the introduction of evidence which may assist it in relation to the hearing of the charge and permitted the hearing to become one of a wide-ranging inquisitorial nature than one limited to the charge which Mr Doherty was facing.
...
He should not have been put in the position of having to answer irrelevant and prejudicial evidence.
150. The Tribunal is satisfied that to admit these references in the evidence would be breaching the rules of natural justice in permitting inadmissible irrelevant evidence of a highly prejudicial nature to be led in the hearing before it.
151. The particular passages should be deleted from the witness statement and not introduced into the evidence.
ORDERS AND CONCLUSION
152. Accordingly the Tribunal makes the following orders:
(a) The application by the doctor for stay be declined.
(b) The application by the doctor that the Tribunal remove certain items of evidence proposed to be called by the Director is granted in part as follows: (i) Statement of complainant -
• The last sentence in the fourth paragraph of the letter marked “A” which the complainant proposes to introduce as an exhibit be deleted.
• Paragraph 11 be deleted. (ii) Statement of Ms X
• Paragraph 27 be deleted.
• The third sentence of paragraph 37 commencing “He told me ...” to the end of that paragraph “... didn’t think he was involved.” be deleted.
• The last sentence of paragraph 38 be deleted.
• All of paragraph 43 be deleted. (iii) Statement of Ms B
• This statement should remain. (iv) Suppression Orders:
In addition to those orders already made on 13 August 2007 there will be interim orders pursuant to s.95(2)(d) of the Act until the further order of the Tribunal prohibiting publication of the names or any details identifying those of the proposed witnesses Ms [T] (Ms T); Ms [C] (Ms C); Dr [C] (Dr C); Dr [W] (Dr W); Dr [F] (Dr F); and Dr [M] (Dr M).
DATED at Wellington this 26th day of October 2007
................................................................ S M Moran
Deputy Chair
Health Practitioners Disciplinary Tribunal
Level 13, Mid City Tower, 139-143 Willis Street
PO Box 11-649, Wellington, New Zealand
Telephone: 64 4 381 6816 Facsimile: 64 4 802 4831
Email: gayfraser@hpdt.org.nz
Website: www.hpdt.org.nz
Orders made on 13 August 2007
SCHEDULE A
(a) A permanent order pursuant to s.95(2)(d) of the Act prohibiting the publication of the name, occupation and any particulars which might identify Ms [X] (to be referred to as “Ms X”).
(b) A permanent order pursuant to s.95(2)(d) of the Act prohibiting the publication of the name, occupation and any particulars which might identify Mr [the complainant] (to be referred to as “the complainant”).
(c) An interim order pursuant to s.95(2)(d) of the Act prohibiting the publication of the name of Dr [YZ] (to be referred to as “the doctor” and “Dr YZ”) or any particulars or details which might identify him including the name of the centre, the town and the areas in which the doctor practised at the time of the alleged events and where he practises now until the charge has been heard and determined by the Tribunal.
(d) An interim order pursuant to s.95(2)(d) of the Act prohibiting the publication of the name of Dr [AB] (to be referred to as “Dr AB”) or any particulars or details which might identify him including the name of the centre, the town and the areas in which the doctor practised at the time of the alleged events
and where he practises now until the charge has been heard and determined by the Tribunal during the hearing.
(e) An interim order pursuant to s.95(2)(c) of the Act prohibiting the publication of the whole or any part of any documents or exhibits produced at the hearing until the further order of the Tribunal but subject to the abovementioned orders insofar as they relate to identification of those persons, but reserving the right to the Tribunal during the hearing to permit publication of the whole or parts
of such documents or exhibits as the Tribunal thinks fit.
Orders made on 14 August 2007
(f) Pursuant to s.95(2)(d) of the Act permanent orders prohibiting the publication of the names and any particulars which may identify Ms A and Ms B be made.
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