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New Zealand Health Practitioners Disciplinary Tribunal |
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New Zealand Health Practitioners Disciplinary TribunalLast Updated: 31 October 2014
Level 13, Mid City Tower, 139 Willis Street, Wellington
6011
PO Box 11649, Manners Street, Wellington 6142,
New
Zealand
Telephone: 64 4 381 6816 Facsimile: 64 4 802 4831
Email: gfraser@hpdt.org.nz
Website: www.hpdt.org.nz
DECISION NO.: 255/Psy08/85P
IN THE MATTER of the Health Practitioners
Competence Assurance Act 2003
AND
IN THE MATTER of disciplinary proceedings against
MR Y, psychologist of xx
BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL TRIBUNAL: Mr Bruce Corkill QC (Chairperson)
Dr Katharine Blackman, Dr Rosemary de Luca, Dr Laura
Ely, Dr Mei Williams(Members)
Ms Gay J Fraser (Executive Officer) Ms Katherine O’Brien (Stenographer)
APPEARANCES: Mr Paul Radich, for the Professional Conduct Committee
Mr Andrew Beck, for Mr Y
Introduction:
1. Mr Y is a psychologist.
2. On 11 March 2008 a disciplinary charge was laid against him. On 24 August 2009 the charge was amended. In the form which was before the Tribunal at the substantive hearing, it raised issues which followed a disciplinary hearing against Mr Y before the Psychologists Board in March 2005. It is alleged that after that hearing there were disclosures of confidential information without consent or other lawful justification in respect of a former client Ms R, to the Police and to Ms R’s former husband; it also alleged that in releasing information to the client’s former husband, Mr Y risked compromising Ms R’s safety. Mr Y contended he was justified in making the disclosures. The charge is set out fully below.
3. The matter was the subject of prehearing proceedings and applications.
4. Mr Y brought judicial review proceedings challenging the jurisdiction of the Professional Conduct Committee (PCC) to lay the charge. That application was dismissed by the High Court on 28 November 2008.1 An appeal was lodged to the Court of Appeal and the appeal was dismissed on 30 June 2009 (IRG v Professional Conduct Committee of the Psychologists’ Board).2
5. Before the Tribunal, various interlocutory matters were dealt with, in respect of which
the decisions are self explanatory. In a decision of 1 September 2009,3 the Tribunal was required to rule on whether parts of the evidence to be called by the PCC were legally privileged. The Tribunal ruled they were not.
6. On 18 December 2008, the Tribunal made a permanent order preventing the
1 High Court Wellington, CIV-2008-485-626, 28 November 2008.
2 [2009] NZCA 274; [2009] NZAR 563 (CA).
3 248/Psy08/85P.
publication of Ms R’s name, and of any details which would identify her.4 In the course of the hearing, the Tribunal made an order in respect of any personal details of her circumstances, except as to the type of conduct described in the particulars of the charge, which could be referred to generically.5 The Tribunal also made orders for non publication of names for Mr E, Mr T and Mr S, and any details leading to their identification.6
7. On 7 July 2009, the Tribunal made an interim order of non publication of Mr Y’s name and any identifying details in connection with the proceedings. This order was directed to continue until further order of the Tribunal, which could be reviewed at any time on application by either party, or by the Tribunal on its own motion.7 The order continued during the hearing.
Amended Charge:
8. The notice of charge, in the form which proceeded at hearing, states:
“The PCC has reason to believe that a ground exists entitling the Tribunal to exercise its powers under section 100 of the Act.
In particular, the PCC has reason to believe that grounds exist for the Tribunal to find that, while a registered psychologist, you have been guilty of professional misconduct because of an act or omission that:
a) amounts to malpractice or negligence in relation to the psychologist scope of practice; and/or
b) has brought or is likely to bring discredit to the profession of psychology
in that:
1. In or around February 2006, you visited the home of Mr E, the former husband of your former client Ms R and, without Ms R’s consent or other lawful justification, you:
4 Decision 199/Psy08/85P.
5 T41/31-34.
6 T40/8-9.
7 Decision No 236/Psy08/85P.
a) Disclosed to Mr E, orally, confidential information relating to Ms R that you had obtained about and/or in the course of working with Ms R; and/or
b) Showed Mr E confidential information contained in documents relating to Ms R, including your clinical notes of your consultations with Ms R; and/or
c) Drew to Mr E’s attention and discussed with Mr E certain parts of the documents referred to in subparagraph (b) including certain allegations Ms R had made about sexual abuse she had suffered in the past from Mr E and others, and sought Mr E’s comments on those parts of the documents; and/or
d) Left some, or some parts, of the documents referred to in subparagraph (b) with Mr E; and/or
2. By an email dated 4 March 2006 you provided Mr E, without Ms R’s consent or other lawful justification:
a) a copy of a letter you had written to the New Zealand Police about Ms R dated 8 February 2006 which contained confidential information relating to Ms R; and/or
b) a copy of the enclosures you had provided to the Police with your letter dated 8 February 2006, which included a confidential Accident Compensation Corporation independence allowance assessment report on Ms R by Dr Anne MacVicar, and other confidential information relating to Ms R; and/or
3. By acting in the manner described in paragraphs 1 and 2 you risked compromising Ms R’s safety in that you had been advised by Ms R and/or were aware that:
a) Mr E had previously been aggressive and/or abusive towards
Ms R and/or others; and/or
b) Ms R had obtained a protection order against Mr E; and/or c) Ms R was afraid of Mr E; and/or
4. In May 2005 and in February 2006 you wrote to the New Zealand Police and disclosed, without Ms R’s consent or other lawful justification, confidential information relating to Ms R, including:
a) a confidential Accident Compensation Corporation independence allowance assessment report on Ms R by Dr Anne MacVicar; and/or
b) other reports to the Accident Compensation Corporation relating to Ms R; and/or
c) extracts from the transcript of a hearing before the Psychologists Board in March 2005 that were subject to an order that all names and/or identifying details of the parties to the hearing (with the exception of your own name), and of those named in documents referred to in the hearing, were suppressed.”
Legal Principles – Burden and Standard of Proof:
9. The burden of proof was on the PCC.
10. As to standard of proof, the appropriate standard is the civil standard, that is proof to the satisfaction of the Tribunal on the balance of probabilities, rather than the criminal standard. The degree of satisfaction called for will vary according to the gravity of the allegations. The greater the gravity of the allegations the higher standard of proof.
11. In the decision of Z v Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1, a majority of the Supreme Court stated that in civil proceedings in New Zealand (including disciplinary proceedings) there is a civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. The Court endorsed the classic passage of Dixon J in Brigginshaw v Brigginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362 to the effect that the affirmative of an allegation must be made out to the reasonable satisfaction of the fact finder. Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.
Professional Misconduct:
12. Section 100 of the HPCA Act provides the grounds on which a health practitioner may be disciplined.
13. In this case, the relevant subsections are section 100(1)(a) and section 100(1)(b).
14. The section provides that malpractice and/or negligence and/or conduct likely to bring discredit to the profession can constitute professional misconduct.
“Malpractice” is defined in the Collins English Dictionary (2nd ed) as:
“The immoral, illegal or unethical conduct or neglect of professional duties. Any instance of improper professional conduct.”
a client by a lawyer ... 2 gen criminal or illegal action: wrongdoing,
misconduct.”
16. Malpractice, although often equated with negligence, is perhaps better considered a broader concept, capable of encompassing neglect, but also of extending to trespassory conduct in the process of caring for patients in relation to consent, breaches of patient confidence and fiduciary obligations, and other forms of conduct reaching the necessary level of gravity, such as assaulting a patient, swearing at or threatening a patient, a deliberate failure to obey an instruction or sexual misconduct (see para 23.65, “Medical Law in New Zealand”, 2006).
17. Negligence and malpractice were discussed by Gendall J in Collie v Nursing Council of New Zealand [2000] NZAR 74. His Honour said:
“Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is to be considered acceptable and not mere inadvertent error, or oversight or for that matter carelessness.”
18. Similarly, it is for the Tribunal to decide whether the conduct, if established, would be likely to bring discredit on the medical profession. In the same case Gendall J stated:
“To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard for the question to be asked by the Council being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the reputation and good-standing of the nursing profession was lowered by the behaviour of the nurse concerned.”
19. There are two steps involved in assessing what constitutes professional misconduct:
19.1 The first step involves an objective analysis of whether or not the health practitioner’s acts or omissions can be reasonably regarded by the Tribunal as constituting:
• malpractice; or
• negligence; or
19.2 The second step of the process requires the Tribunal to be satisfied that the health practitioner’s acts or omissions require a disciplinary sanction for the purposes of protecting the public and/or warrant maintaining professional standards and/or punishing the health practitioner.
20. This approach to the assessment of professional misconduct under the statute is well established under previous decisions of the Tribunal, and in authorities such as McKenzie v MPDT & Anor [2004] NZR 47.
21. Threshold is an important issue in this case, and both Counsel made detailed submissions as to the law on that issue, referring to High Court decisions8 and the Australian decision of Pillai v Messiter9. The Tribunal considers the correct approach
8 Particularly the dicta of Courtney J in Martin v Director of Proceedings, 2 July 2008, HC Auckland, CIV-
2006-404-5706; and Simon France J in Vatsyayann v Professional Conduct Committee, 14 August 2009, HC Wellington CIV-2009-485-259.
is that described by the Court of Appeal in F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774, which endorsed the earlier statement of Elias J in B v Medical Council (noted at [2005] 3 NZLR 810). She made the important point that the threshold is “inevitably one of degree”. The Court of Appeal expressed the issue in this way:
“In cases of both professional misconduct and conduct unbecoming it will be necessary to decide if there has been a departure from acceptable standards, and then to decide whether the departure is significant enough to warrant sanction.”
22. That approach continues to be appropriate under the current Act. In determining whether the departure is significant enough there must be positive reasons to justify such a conclusion.
Credibility:
23. Credibility assessments arise in this case.
24. What is involved in any test for “credibility” was articulated by a Canadian Appellate Court (in Farynia v Chorny [1952] 2 DLR 354 (BCCA)) to be that the real test of the truth of the story of a witness must be at harmony with the preponderance of the probabilities which are practical, and which an informed person would readily recognise as reasonable in that place and in those conditions.
25. So, the Tribunal, where relevant, must consider such factors as:
25.1 The witness’ manner and demeanor when giving evidence.
25.2 Issues of potential bias – to what extent was evidence given from a position of self interest.
25.3 Internal consistency – in other words was the evidence of the witness consistent throughout, either during the hearing itself, or with regard to previous statements.
25.4 External consistency – in other words, was the evidence of the witness
consistent with that given by other witnesses.
25.5 Whether non advantageous concessions were freely tendered.
A Psychologists’ Duty of Confidentiality:
26. Counsel for the PCC developed a comprehensive submission as to the sources of a psychologist’s duty of confidence. He stated that in New Zealand the duty of confidence owed by a psychologist to his or her client stems from a number of sources:
26.1. The Health Information Privacy Code 1994 (the 1994 Code);
26.2. The Code of Ethics for Psychologists Working in Aotearoa/New Zealand 2002 (the Code of Ethics);
26.3. a contractual duty;
26.4. the tort of unwarranted disclosure of private facts; and
26.5. the equitable doctrine of unlawful breach of confidence.
Relevant provisions of the Code of Ethics:
27. The Code of Ethics was formally adopted by the Psychologists Board on 6 December
2002. It is a key document. Its contents should be very well known to members of the psychologists’ profession, and is therefore an obvious starting point when assessing relevant professional obligations.
28. Principle 1 of the Code of Ethics relates to “respect for the dignity of persons and peoples”. For present purposes, the relevant provisions are those described at Principle 1.6. It states:
“Privacy and Confidentiality:
Psychologists recognise and promote persons’ and people’s rights to privacy. They also recognise that there is a duty to disclose to appropriate people real threats to the safety of individuals and the public.
The practice implications of this include:
1.6.1 Psychologists make themselves aware of relevant acts and standards and follow procedures that provide for informed consent, confidentiality, fair treatment and due process as laid out in those acts
and standards.
...
1.6.9 Psychologists do not disclose personal information obtained from an individual, family, whanau or community group or colleague without the informed consent of those who provide the information, except in circumstances provided for in 1.6.10.
...
1.6.10 Psychologists recognise that there are certain exceptions and/or limitations to non disclosure of personal information, and particular circumstances where there is a duty to disclose. These are:
(a) Diminished capacity: ...
(b) Children/young persons: ... (c) Urgent need ...
(d) Legal requirements: where a psychologist is compelled by law to disclose information given by a client or research participant.
(Under comments, in respect of this obligation, it is stated:
“For example, mandated assessments and treatments, Court order to disclose information from files or other records. In such circumstances psychologists inform the person or persons in advance, where possible, of such limitations to confidentiality that may exist.”)
(e) Client or public safety: where a psychologist believes that non disclosure may endanger a client, research participant or another person but is denied permission to disclose, the psychologist exercises professional judgment in deciding whether to breach confidentiality or not.
(Under comments, it is stated:
“Psychologists should consult with senior colleagues before making their decision. Ultimately they must be able to justify the decision made.”)
1.6.11 Psychologists, in disclosing information as allowed for in 1.6.10, provide only that information which, in their opinion, is accurate and relevant to the situation” (emphasis added).
Psychologists recognise that a basic or ethical expectation of our discipline is
that its activities will benefit members of society or, at the very least, do no
harm.”
Under “practice implications” it is stated:
“Psychologists assess the potential harm and benefits involved in their actions, to predict the likelihood of their occurrence and proceed only if the potential benefits outweigh the potential harms. They endeavour to correct any harmful effects that have occurred because of their activities.”)
30. The Court of Appeal in Hosking v Runting10 emphasised that privacy and confidence are different concepts. In that wholly different context, the Court considered it useful to allow for the possibility of separate causes of action to protect the concepts of privacy on the one hand, and confidentiality on the other. 11
31. However, in many contexts there is an overlap. That is particularly so in some areas
of the health sector because what is confidential must be private.
32. The Code of Ethics recognises this linkage. The heading of paragraph 1.6 states
“Privacy and Confidentiality”.
33. In IRG, the Court of Appeal used the terms interchangeably with regard to this case.12
34. The Tribunal has, for present purposes, concluded that the provisions of the 1994
Code (which focuses on privacy) are an important aid in considering the relevant obligations; but the obligations in Rule 11 should be understood in the context of the particular ethical obligations which fall on a psychologist, as described in the above provisions in the Code of Ethics.13
Relevant provisions of the 1994 Code:
35. Clause 4 of the 1994 Code states:
(a) Information about the health of that individual, including his or her medical history
10 [2004] NZCA 34; [2005] 1 NZLR 1, para 48.
11 Paras 46-49.
12 Eg para [33].
13 In this regard, see commentary in the 1994 Code, Rule 11, by the Privacy Commissioner.
...
(c) Information about any health services or disability services that are being provided, or have been provided, to that individual
...
(e) Information about that individual which is collected before or in the course of, and incidental to, the provision of any health service or disability service to that individual.”
36. Rule 11 states:
“1. A health agency that holds health information must not disclose the information unless the agency believes, on reasonable grounds, that –
(a) The disclosure is to:
(i) The individual concerned
...
(b) The disclosure is authorised by – (i) The individual concerned
...
2. Compliance with paragraph 1(b) is not necessary if the health agency believes on reasonable grounds that it is either not desirable and not practicable to obtain authorisation from the individual concerned and:
(i) That non compliance is necessary –
(i) To avoid prejudice the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution and punishment of offences; or
(ii) For the conduct of proceedings before any Court or Tribunal (being proceedings that have been commenced or are reasonably in contemplation); or
3. Disclosure under sub Rule 2 is permitted only to the extent necessary for the particular purpose” (emphasis added).
37. Guidance as to whether disclosure is “necessary” is given by the Code of Ethics. One important example of necessity is where non-disclosure may endanger client or public safety. There must be a real threat of danger. The examples given demonstrate that
the exceptions to confidentiality arise in exceptional circumstances. Before it could be said to be necessary, the psychologist should consult with a senior colleague before making the decision to disclose. Professional judgment should be exercised. And only that information which is accurate and relevant should be disclosed.
Other legal sources:
38. In R v Matthews14 the Court of Appeal stated, in connection with the duty of confidence owed by a medical practitioner:
“It is not necessary to explore the extent of the equitable duty of confidence. That is because if a medical practitioner complies with the 1994 Code, the Courts will not impose a higher duty on him or her via equity.”
39. The reference to “equity” is a reference to the equitable cause of action for breach of confidence, a cause of action which might be pursued under a common law action.15
Common law principles governing private law claims operate in parallel to the statutory protection under which arises the 1994 Code. Having regard to the dicta in R v Matthews (which applies in the present context), it is unnecessary to consider those principles further.
Breaches of a Code in a disciplinary context:
40. Not all breaches of a Code will necessarily constitute professional misconduct; obviously a fact specific analysis is required and an assessment made as to the seriousness of the departure. But the principles of a Code such as those referred to above are a helpful indicator of proper practice and ethical standards. This approach is consistent with statements made in the High Court such as:
40.1. Staite v Psychologists Board (1998) 18 FRNZ 18, where Young J stated that a
Code of Ethics should not be used as a template; rather the principles of the
14 8 March 2004, CA 370/03, at para 27.
15 The components of such a claim are well known, and spelt out in many cases. They are conveniently summarised in Hunt v A [2007] NZCA 332; [2008] 1 NZLR 368 (CA) at para [65]; a useful case dealing with the scope of the professional duty of confidence, in a disciplinary context, is Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513 (HC and CA); it is to be noted, however, that the decision predates the 1994
Code, and the Disciplinary Tribunal, and on judicial review the Courts were primarily assisted by common
Code should be regarded as a guide, and is one of the factors to be taken into account by the Tribunal when exercising its independent judgment as to whether in the particular circumstances there has been professional misconduct.
40.2. To similar effect is the dicta of Smellie J in Lake v The Medical Council of
New Zealand;16 and of Gendall J in Collie.17
The Hearing:
41. The hearing proceeded in the usual way. A substantial quantity of information was placed before the Tribunal. All of it has been considered very carefully. Relevant aspects of the evidence will be discussed when individual particulars are considered.
42. The PCC called evidence from:
42.1. Ms R, the complainant.
42.2. Mr E, her former husband.
42.3. Sergeant D, of the xx Police.
42.4. Mr W R Mitchell, a senior investigation officer from the Investigation Unit of the Accident Compensation Corporation (ACC).18
42.5. Rebuttal evidence was called from Mr S Osborne, Chief Executive and
Registrar of the Psychologists’ Board.
43. Evidence called for the practitioner was as follows:
43.1. Mr Y.
43.2. Mr H, a friend and support person of Mr Y.
Chronology:
44. The Tribunal now describes the essential dates in the chronology.
law principles. A well known decision dealing with such a breach by a psychologist is JD v Ross [1999] NZFLR 951 (HC).
16 HC Auckland, HC 123/96, 23 January 1998 at p30.
17 Supra at paragraph [30].
18 His evidence was challenged as irrelevant; the Tribunal ruled both on the basis of direct relevance, and on
45. On 20 November 2001 Ms R was referred to Mr Y by the Sensitive Claims Unit of ACC for counselling with regard to past sexual abuse.19 Ms R saw Mr Y, without making any payment at any time.20
46. 1 August 2002: Mr Y believed the last counselling session took place on this date21
being the date when ACC funding for the counselling ceased. Mr Y said that from that point onwards he was an ACC advocate. Ms R was unaware of such a change of status. She was later informed there had been a falling out between Mr Y and ACC, but no further explanation was given. After that she presumed there was no problem, that Mr Y was contracted by the ACC, and that he was sending reports to it.22
47. 16 June 2003: Ms R saw Dr A MacVicar, an independence allowance assessor for
ACC purposes. Dr MacVicar prepared a report (the MacVicar report), which recorded a whole person impairment of 12%, from which Dr MacVicar deducted 8% for impairment attributable to causes other than sexual abuse.
48. 8 July 2003: as the final whole person impairment was only 4%, ACC indicated there was no entitlement to independence allowance.23
49. 15 July 2003: Mr Y stated that on this date Ms R signed an authorisation, which he said gave him permission to use the MacVicar report freely.24 Ms R denied signing the document. This issue is examined more fully later in this decision.
50. 17 July 2003: Ms R applied for a review of the ACC decision, under the Injury
Prevention, Rehabilitation and Compensation Act 2001. In her application she stated
the basis of the rules relating to propensity evidence, that it should be admitted: T59/6-60/29.
19 ABD 18; and para 41 of a brief of evidence given to Psychologists’ Board (ABD 353).
20 T31/7, letter to ACC 15 October 2003 (ABD 339).
21 Brief para 9.
22 T30/34-31/3.
23 Exhibit 10, p2.
24 Brief para 37.
that she was “attending counselling”.25 That is, at that time she believed this to be the case.
51. 15 October 2003: an ACC review hearing was heard by a reviewer in xx. Mr Y attended the hearing with her. In his subsequent decision, the reviewer stated that at the hearing Ms R went through considerable information, confirmed she had filed a complaint under the Code of ACC claimants’ rights against Dr MacVicar in the previous few days, and recorded that there were no counselling reports on file from Mr Y who Ms R said had been her counsellor for some 18 months. Ms R also said
Dr MacVicar’s report was completely muddled.26
52. Later that day, Ms R wrote a letter of complaint to the ACC Sensitive Claims Unit concerning Mr Y. She was very concerned to have discovered at the review hearing that ACC did not have any reports or updates from him. She said she would not be keeping the next appointment with him, due on 29 October 2003. The same day she sent a copy of her ACC complaint to the NZ Psychological Society.27
53. 17 October 2003: the reviewer issued his decision, directing that Ms R was entitled to
a re-assessment in respect of her independence allowance claim.28
54. 17 November 2003: Ms R lodged an official complaint with the Psychologists’ Board, in relation to Mr Y’s conduct.29
55. 14, 15 March 2005: the hearing of a disciplinary charge (based on the complaint lodged on 17 November 2003) took place before the Psychologists’ Board, with Mr Y representing himself.30 The Board made an order suppressing the names of the parties
to the hearing, and those named in the documents.31
25 ABD 333.
26 Exhibit 10.
27 ABD 339, 341.
28 Exhibit 10.
29 ABD
30 ABD 28.
31 ABD 29.
56. 18 March 2005: Mr Y applied to the Psychologists’ Board to renew his annual practising certificate.32
57. 6 May 2005: the Psychologists’ Board issued its liability decision, and requested submissions on penalty.33
58. 16 May 2005: Mr Y placed an entry on the NZ Police website, stating he had information about a former client who in his view had committed multiple acts of perjury over at least 19 years.34
59. 30 May 2005: Mr Y wrote a detailed letter to the Police, naming and providing
information relating to Ms R. He stated she had made false claims with the ACC, had misled the Psychologists’ Board when giving her evidence, and had lied under oath. He said she was a compulsive liar. He asked the Police to investigate his allegations.35
60. 22 June 2005: the penalty decision of the Psychologists’ Board was issued. It stated
that any details that might identify Ms R or any other party (including those named in documents used in the case) were permanently suppressed.36
61. 27 June 2005: a series of email exchanges took place between Mr Y and the Police, following his earlier letter of complaint.37
62. 30 June 2005: the Psychologists’ Board had concerns about Mr Y’s competence and his failure to engage in a competence review process. It determined it would not renew his practising certificate. Mr Y was advised of the Board’s views on this date. The effect of section 30(3) of the HPCA Act was that he was treated as having held a practising certificate up to that date.38
32 IRG decision, para 7.
33 ABD 28.
34 ABD 105.
35 ABD 89.
36 ABD 35.
37 Tab 23.
38 IRG para [7].
63. 21 July 2005: Mr Y filed an appeal against the decisions of the Psychologists’ Board in the High Court.
64. September 2005: Mr Y approached Sergeant D at the xx Police Station, to seek an opinion from the Police relating to Ms R and the evidence she had given at the Psychologists’ Board hearing. He understood Mr Y was wanting to make a perjury complaint to the Police against Ms R.39
65. 17 November 2005: Mr Y followed up his visit to Sergeant D, with a written
complaint, stating that he wanted complaints of fraud and perjury investigated. He said he had taken the file to the Christchurch Office of the ACC, and had been told ACC would take some time to investigate the matter.40
66. 21 November 2005: Mr Y wrote to the Christchurch Police, requesting documents
regarding claims, he said, Ms R had made about the conduct of the Police.41
67. 8 February 2006: Mr Y wrote to the xx Police again outlining his concerns about Ms R. He stated she was a pathological liar, and requested that the Police seriously consider and investigate the matters he raised. He said he was aware of his civic duty in presenting the material he was providing.42
68. Late February 2006: Mr Y telephoned Mr E (Ms R’s former husband). Mr Y stated he
had been dealing with his former wife Ms R, and had been treating her for historical matters. He said she had accused him (Mr Y) of various things, and that she had cost him a lot of money. He said he wanted to discuss the details. Mr E agreed to meet Mr Y.
69. 28 February 2006: by this date, Ms R had learned of the contact which had been made with Mr E (from her daughter), and she sent an email to the Psychologists’ Board stating she felt very threatened by this development. She said that Mr Y knew her ex
39 D brief para 6.
40 ABD 166.
41 ABD 173.
husband had homicidal thoughts towards her, and that she had a protection order. She was concerned that Mr Y was trying to provoke her ex husband against her, so as to obtain revenge.
70. Late February 2006: Mr Y visited Mr E, and showed him documents relating to Ms R, the details of which will be discussed later in this decision.43
71. 1 March 2006: Ms R complained to the Psychologists’ Board44 and to the Police.45 Her
complaints were that she was concerned Mr Y was attempting to incite Mr E to take action against her.
72. 4, 6 and 14 March 2006: Mr Y sent a series of emails to Mr E, the first of which attached a document. The emails are discussed more fully later in this decision.46
73. 7 March 2006: as a result of the complaint lodged by Ms R, the Police spoke to her daughter as to what she knew concerning Mr Y’s visit to her father; the Police then spoke to Ms R herself.47
74. 2 April 2006: in connection with the same inquiry, Mr E was spoken to by the Police
and provided a statement as to what had occurred; the Police uplifted copies of documents which Mr Y had provided to Mr E.48
75. 10 April 2006: the Area Commander for the South Canterbury Police advised Mr Y that there was insufficient evidence to conclude Ms R had perjured herself, and that if Mr Y had complaints against other organisations or Tribunals he should direct those complaints to the appropriate authorities.49
76. 24 July 2006: the Police advised Ms R that having considered her complaint relating to
Mr Y, they had concluded the issue was not a criminal matter, and would not be
42 ABD 182.
43 E brief para 8; Y brief para 28.
44 ABD 37.
45 ABD 39.
46 ABD 43-45.
47 ABD 202.
48 ABD 210, 212.
investigating it further. Advice was given that she might consider other actions including a complaint to the Psychologists’ Board.50
77. 7 November 2006: Ms R lodged a complaint with the Psychologists’ Board stating that sensitive and confidential information had been shown by Mr Y to her ex husband, and to the Police.51
78. 23 May 2007: the High Court heard Mr Y’s appeal against the Psychologists’ Board
decision. By decision of 28 May 2007, the Court dismissed Mr Y’s appeal.
79. 26 February 2008: because the Board had established a competence review process for Mr Y in which he declined to take part, he was deemed to have failed that process. The Board then established a competence programme. Mr Y also failed that, and the Board suspended his registration from 26 February 2008.52
Mr Y’s status: psychologist or counsellor/ACC advocate?
80. Mr Y contended that with regard to the events under review, when he was working with Ms R he was not acting as a psychologist, but as an ACC counsellor until late
2002, and thereafter as an ACC advocate for the purposes of Ms R’s attendance on an independence allowance assessor, and thereafter at a review hearing.53
81. The PCC submitted its reply that at all material times Mr Y was a registered psychologist, acting within the general scope of practice.
82. The relevant evidence on this topic is:
82.1. At all material times, Mr Y was a registered psychologist. After the HPCA Act took effect, Mr Y held a “psychologist’s scope of practice”, described as follows:
49 ABD 197.
50 ABD 231-2.
51 ABD 79.
52 IRD decision para [10].
53 If all other aspects of the charge were established, this issue would determine whether the Tribunal should then consider the case under s100(1)(a) (if a registered psychologist) or s100(1)(b) (if not): IRG.
“A psychologist within a general scope is defined as rendering or offering to render to individuals, groups, organisations or the public any psychological service involving the application of psychological knowledge, principles, methods and procedures of understanding, predicting ameliorating or influencing behaviour, effect or cognition. Such practice is undertaken within an individual’s area and level of expertise and with due regard to ethical, legal and Board-prescribed
standards.”54
82.2. Ms R was referred by the ACC to Mr Y for ACC counselling, he being qualified for those purposes under the Accident Insurance (“Counsellor”) Regulations 1999. To be so qualified he had to be a member of one of the defined bodies in the Regulations. The relevant qualification as far as Mr Y was concerned was that he was a member of the New Zealand Psychological Society Inc.55
82.3. Mr Osborne advised the Tribunal that a psychologist did not have to be a registered psychologist to be a member of the Psychological Society, but to be a member of the Society and to be practising, the member would have to be registered with the Psychologists’ Board.56 He confirmed that as a member of the Society, such a person would be subject to the professional obligations of registration.57 He considered that the consumer would regard an ACC “counsellor” so appointed as being “my psychologist”; the Tribunal accepts this evidence.
82.4. Although an issue arose as to whether Mr Y was a paid up member of that Society on 10 December 2002,58 Ms R consistently understood he was acting as an ACC counsellor, up to and including the time of the review hearing.59
54 Exhibit 23.
55 Regulation 6(2), Accident Insurance (“Counsellor”) Regulations 1999.
56 T143/8-19.
57 T144/32-145/9,
58 ABD 365.
59 ABD 336, 339-40.
82.5. Mr Y made some case notes available to the Tribunal, which appear to record consultations until the end of 2002. Although he said he ceased to act as a counsellor on 1 August 2002 and was an ACC advocate thereafter, the notes show no discernible difference to delineate between “counselling” and “advocacy”. Nor was there any evidence in the notes that a change of status was discussed, or that Ms R was being prepared for an independence allowance interview.
82.6. Significantly, at this time, Mr Y referred to himself when communicating with clients in connection with ACC counselling, as a psychologist.60
82.7. At the Psychologists’ Board disciplinary hearing in March 2005, there was no suggestion from him that he was anything other than a psychologist. The disciplinary hearing proceeded on the basis he was a psychologist, and so did the subsequent appeal. He did not assert, at that time, that he was a “counsellor” or “ACC advocate” as distinct from a psychologist, or that those bodies had no jurisdiction when dealing with the charges.
82.8. His communications to the PCC in connection with the charge which was before the Tribunal did not make this distinction either.61
83. Drawing this evidence together, the Tribunal has concluded:
83.1. Mr Y was acting as a registered psychologist at all material times; and that was the basis on which he was approved as an ACC “counsellor”. It accepts Mr Osborne’s advice as correctly describing the legal position.
83.2. His scope of practice included the counselling activity he was undertaking, since his qualification as a psychologist was the foundation for the ACC approval, and he was rendering a psychological service.
83.3. There was nothing in any of the other materials produced to suggest otherwise.
83.4. The assertion to the contrary was made only very recently, and lacked credibility.
83.5. For the purposes of the disciplinary charge, the Tribunal is completely satisfied that Mr Y was a registered psychologist acting within his scope of practice.
Consent/authorisation?
84. Reference has been made to the disputed document of 15 July 2003. Mr Y contends that after he was shown the MacVicar report, following the independence allowance assessment, he was given permission to use the assessment freely, as a result of signing the following statement:
“I consent to Mr Y consulting with whoever he feels necessary re my ACC file, and in particular the MacVicar assessment June 2003.
- All counsellor notes.
- GP letters.
- Mental health services.
- My notes.
- Mr Y’s clinical notes.
- Any legal advice.”62
85. He says he gave the original document to Ms R.
86. For her part, Ms R denied signing the document. She said she would normally sign a formal document using her full name, rather than the form which appeared on the document being her initials and surname. However, there were examples of both types of signature in the documents before the Tribunal.63
60 His letterhead of 27 December 2002 described him as a registered psychologist. ABD 364.
61 ABD 85.
62 Brief para 37.
63 ABD pp51, 77 & 80.
87. Ms R said she had never seen Mr Y’s handwriting before, and that she had not been given the original. She would not have given him such a permission.64 She thought the signature was very close to her signature, but was not hers.65
88. In essence, Ms R was asserting that someone else must have affixed her signature to the document.
89. The evidence placed before the Tribunal was in photocopy form only, and poor quality photocopying at that. In the absence of expert handwriting evidence, which was not called by the PCC,66 the Tribunal is not prepared to conclude that Ms R’s signature had been placed on the document by someone else, or forged. The Tribunal gives the benefit of the doubt on this issue to Mr Y.
90. Analysing the content of the document it is to be noted:
90.1. It was signed soon after ACC declined Ms R’s independence allowance (8 July
2003) and two days before she filed an application for review (17 July 2003). It was signed in the context of an anticipated application for review, and, the Tribunal finds, for the purposes of it.
90.2. Ms R clearly would not have signed it for the purposes of Mr Y lodging a criminal complaint with the Police against her – and Mr Y himself acknowledged this.67
90.3. On any view, then, the document could not be understood as having relevance
for anything other than the ACC review. There was no “informed consent” for the purposes which Mr Y says it could be utilised for, namely the disclosure of confidential information and documents to the Police, and to Ms R’s former husband.
64 T36/7-18.
65 T42/17-29.
66 That is not a criticism – the issue only arose at the hearing.
67 T131/21-132/5; 134/23-135/10.
90.4. Accordingly, the Tribunal does not regard it as an “authorisation” to use the word in the 1994 Code, or “consent” to use the word in the charge.
91. The Tribunal now examines the elements of each particular, other than issues as to lawful justification which will be dealt with separately.
Particular 1: February 2006, visited Mr E and disclosed confidential information/discussed confidential information and left documents with him:
92. Particulars 1-3 relate to communications Mr Y had with Mr E, Ms R’s former husband, in late February/early March 2006. Mr Y stated that he did this because he was desperate to obtain evidence for his intended appeal to the High Court, and he wanted to verify matters he wished to raise in the course of that appeal.68
93. Mr E was asked to make a statement to the Police soon after the contact with Mr Y
(because Ms R had lodged a complaint about that contact), and this statement was taken only a short time later, on 2 April 2006. The statement may thus be regarded as a relatively contemporaneous and reliable document.69
94. In the statement, Mr Y said that he had been treating Ms R for 10 months, in relation to
historical matters. She had accused him of various things and she had “cost him a lot of money”. He wanted to meet with him to discuss details.
95. Upon meeting Mr E, a few days later, he confirmed he was counselling Ms R; and he said he had assisted her in making an ACC claim. Mr E said he was given photocopies of some notes Mr Y had in his possession, which were highlighted in places. Mr Y wanted to check up on the matters that were highlighted. Discussion ensued.
96. Mr E told Mr Y that some matters were correct, and others were not. When told there were some matters that were true, Mr Y seemed surprised and said something like “oh she can tell the truth”.
68 Brief paras 27-29.
69 ABD 46.
97. Mr Y informed Mr E that Ms R had been rejected for an ACC claim, and when it was rejected she had blamed Mr Y because he did not coach her enough for her claim to succeed. Mr E then said in his statement:
“He told me she appealed the ACC decision and failed. After this she became very nasty. He emphasised how nasty she got. He told me she belonged to a nudist camp and that she was kicked out because she was causing trouble making accusations against another nudist. He said this to emphasise how nasty she was.”
98. Mr E explained that when Mr Y was talking about Ms R, he appeared to be very angry, and obviously had a lot of hostility towards her. After the meeting, Mr Y sent him three emails.
99. Mr Y in his evidence said that he had approached Mr E with the greatest of caution.
He had been warned by his friend Mr H that he was “treading on very dangerous ground and had to be ultra cautious”. It appears he was frustrated with the lack of response from the Police to his attempts to have them investigate Ms R, and so approached Mr E.70
100. There is no evidence that Mr E was told Mr Y wanted evidence for the purposes of an
appeal to the High Court.
101. Turning to the specifics of the first particular, it is well established that in or around
February 2006 Mr Y visited the home of Mr E, who was Ms R’s husband.
102. As to the subparticulars:
102.1. Subparticular (a): the allegation is that Mr Y disclosed to Mr E, orally, confidential information relating to Ms R that he had obtained about and/or in the course of working with her. The purpose of the visit by Mr Y to Mr E was to discuss information relating to Ms R that he had obtained whilst working with her. The focus of the discussion appears to have been on the MacVicar report, and that report contained extensive reference to information Ms R had
conveyed to Dr MacVicar concerning various allegations of sexual abuse over a period of many years.71 There was oral discussion of information relating to Ms R, which Mr Y had obtained when working with her. The factual basis of the subparticular is established; the issue of confidentiality is dealt with below.
102.2. Subparticular (b): showed Mr E confidential information contained in documents relating to Ms R, including clinical notes of consultations with her. As already noted, the Tribunal accepts Mr E was shown parts of the MacVicar report. It is evident Mr Y wanted to discuss concerns he had about a number of handwritten endorsements she had made on a copy of the MacVicar report.72
This was a document she had prepared for her personal purposes, after she had
been interviewed by Dr MacVicar and for the purposes of the ACC review hearing. The Tribunal considers it unlikely that Mr E was shown copies of Mr Y’s own case notes. The first part of the subparticular is established, but not the last part of it. The issue of confidentiality is dealt with below.
102.3. Subparticular (c): drew to Mr E’s attention to and discussed with him certain parts of the documents referred to in subparagraph (b), including allegations she had made about sexual abuse she had suffered in the past from Mr E and others, seeking Mr E’s comments thereon. The reason for the visit was to discuss with Mr E aspects of the MacVicar report that referred to Mr E himself (relating to alleged sexual abuse). Mr Y hoped Mr E would say that Ms R was lying about him. It is clear the factual basis of the subparticular is established. Mr Y, via his lawyer, accepted this at the hearing.
102.4. Subparticular (d): left some, or some parts, of the documents referred to in subparticular (b) with Mr E. Subsequently, the Police uplifted a copy of the
70 T107/1-34.
71 ABD 47, Mr E’s brief para 8-9.
MacVicar report from Mr E.73 The Tribunal is satisfied the document could only have been provided to Mr E by Mr Y. There are two possibilities as to how he was given it. One possibility is that the document was left with him on the occasion of the visit; the other is that it was emailed to him, as an attachment to an email of 4 March 2006 (which is the subject of particular 2). Mr E was inconsistent on this issue. In his Police brief he stated that all the documents were taken away by Mr Y at the end of the visit.74 In the brief read to the Tribunal, however, he stated that a range of papers were left with him, which included handwritten notes and typed papers, but that he had since thrown them away in the course of general cleanups not realising there would be any further need for them.75 Mr Y stated in his brief of evidence that he did
not leave any documents with Mr E,76 but in his oral evidence, was less sure.
The email of 4 March 2006 refers to an attachment, which Mr Y says was a copy of a letter he had sent to the New Zealand Police about Ms R, dated
8 February 2006. If that was the attachment to the email, the Tribunal concludes it is more likely than not that the copy of the MacVicar report which Mr E had in his possession when he subsequently spoke to the Police was left with him at the end of the visit from Mr Y. Accordingly, the factual basis of the fourth subparticular is established.
72 See for example ABD 59.
73 ABD 210.
74 ABD 48.
75 Brief para 8.
76 Brief para 48.
with complex issues relating to past sexual abuse. The Tribunal is well satisfied that all the documents involved, and in particular the MacVicar report, were of a highly confidential nature. The information did not lose its confidential status, at the ACC review hearing. As far as MacVicar report is concerned, the version Mr Y disclosed had Ms R’s handwriting on it. She said it was for her personal use; and there is no evidence that it was formally produced to the reviewer. The review hearing was a closed hearing, and it involved very personal information. There could be no possible reason for concluding that because the issues concerning Ms R’s previous abuse had been discussed at a review hearing, that they thereby lost their confidential status.
105. The Tribunal also considered the question of whether confidentiality was lost by the fact of the MacVicar report (and other documents) being placed before the Psychologists’ Board hearing. The Board made both interim77 and final suppression
orders.78 The final order which was made on 22 June 2005 stated:
“Any details that might identify the complainant or any other party (including those named in documents used in this case) are permanently suppressed.”
106. The reason given for the making of the final order, was “... a legitimate need for public protection, especially given Mr Y’s apparent lack of insight”.
77 ABD 29.
78 ABD 36.
107. The Board was obviously very concerned about the issue of confidentiality, and did what it could to protect it. There could be no doubt that Mr Y, as the relevant health professional, should have understood the Board considered confidentiality should be maintained, particularly by him.
108. In the Tribunal’s opinion, then, the documents did not lose their confidential status as a result of the hearing before the Psychologists’ Board. Rather, it was protected.
109. Lay people who were involved in this chronology recognised the confidential nature of the documents. As already mentioned, Mr H made it clear to Mr Y that he was treading on dangerous ground; and unsurprisingly Mr E himself was concerned about this aspect also – in his statement to the Police he recorded that when Mr Y was telling him about Ms R’s information, he had asked Mr Y whether he should be telling him. Mr Y said that he had checked with his lawyer and that he was entitled to show information to check details; but the point for present purposes is that Mr E, another lay person, was able to recognise that the information should have been regarded as confidential.
110. In summary, then, the Tribunal is satisfied that each of the subparticulars in particular
1 are established (apart from the second limb of subparticular (b)) and that the information discussed and disclosed in writing, was confidential.
Particular 2: email of 4 March 2006 sent by Mr Y to Mr E:
111. Following the visit, Mr Y sent Mr E three emails:
111.1. The first was dated 4 March 2006, with a document attached. In the text of the email, Mr Y said:
“This is self explanatory. Refer to the ACC independence living allowance assessment. I’ll send material as relevant.”
111.2. A second email was sent on 6 March 2006. In that email, Mr Y asked a question as to a reference contained in the MacVicar report, about a male person related to one of Mr E’s family members.
111.3. On 14 March 2006, Mr Y told Mr E that the Police had been given comprehensive material in the previous week. He went on to say:
“Hopefully they will do the job and put pressure on that witch.”
He asked whether Mr E had any thoughts regards the material which had been provided.
112. The question is what document or documents were attached to the first of these emails.
Mr Y accepted that the document was a copy of the letter he had written to the New Zealand Police about Ms R dated 8 February 2006. The Tribunal accepts his evidence in that regard.
113. Particular 2 goes on to allege that he also supplied, via that email, a copy of the enclosures as originally attached to the letter to the Police of 8 February 2006. The Tribunal has already determined that the MacVicar report was left by Mr Y with Mr E following the visit; and there is no evidence of Mr E having been given any other documents beyond the letter of 8 February 2006. Accordingly subparticular 2(b) is not established.
114. The letter of 8 February 2006 refers to details derived from the MacVicar report. This very sensitive information was conveyed by Ms R to Mr Y when he was working with her. The Tribunal, for the same reasons as before, is well satisfied that this information was confidential.
Particular 3: by acting as described in Particulars 1 and 2, Mr Y risked compromising Ms R’s safety, having regard to certain information he had been informed about previously:
115. Mr Y stated that Mr E had had no contact with Ms R for at least 10 years, and he did not have the view that Ms R was fearful of Mr E.79
116. Ms R said she was really concerned about the disclosures to her former husband, because of past events between them. That is why she complained to the Police about them.80
117. The Tribunal has no doubt that Ms R did reveal to Mr Y when she was his client very
personal information concerning Mr E, particularly alleged abuse by him:
117.1. [Not for publication by order of the Tribunal]
117.2. Mr Y’s case notes recorded a number of disclosures by Ms R concerning her former husband, and alleged abuse by him.81
117.3. In her evidence, Ms R explained there had been a very difficult relationship including episodes of violence, [Not for publication by order of the Tribunal] She said she was deeply fearful of him, and had discussed these matters with Mr Y.82
118. Turning to the subparticulars:
118.1. Subparticular (a), had been advised that Mr E had previously been aggressive and/or abusive towards Ms R and/or others: the totality of the evidence shows that Ms R did outline her concerns to Mr Y about these matters in counselling sessions, referred to them extensively in the MacVicar report, and in the handwritten notes she made on the MacVicar report. The subparticular is established.
79 Brief para 42.
80 Brief paras 16 & 17.
81 [Not for publication by order of the Tribunal]
82 Briefs paras 16 & 17.
118.2. Subparticular (b), had been informed that Ms R had obtained a protection order against Mr E: neither the MacVicar report nor the case notes refer to this information. The Tribunal is not satisfied, that the subparticular is established.
118.3. Subparticular (c), was informed that Ms R was afraid of Mr E: there is no doubt that this fear was fully conveyed.
119. The particular requires the Tribunal to assess whether, having regard to the history just discussed and in providing information about Mr E, Mr Y “risked compromising Ms R’s safety”. There is no evidence Mr E was known to Mr Y, prior to the contact of February/March 2006. The evidence shows he had been given a lot of information to indicate that Ms R believed there had been violence and abusive behaviour from her former husband; and that she was still very apprehensive about him, and scared. Mr Y had no independent information that would allow him to assess whether:
119.1. It was at all safe to breach the client’s confidentiality by revealing this information.
119.2. Mr E would react adversely towards Ms R.
120. In short, Mr Y ran a significant risk in light of the information he had been given, when he contacted and visited Mr E, and when he sent further information by email. The tenor of the communications was unprofessional and exacerbated that risk. The evidence from Mr E, which the Tribunal accepts, is Mr Y became angry during the meeting; and subsequently referred to Ms R as a “witch”.
121. The Tribunal considers that Mr Y was running a risk in undertaking the communications, and in deporting himself in this way.
Particular 4: wrote letters to the New Zealand Police in May 2005 and February 2006, and disclosed confidential information:
122. There is no doubt that Mr Y wrote the two letters identified, on 30 May 200583 and 8
February 2006;84 and that was not disputed by Mr Y.
123. As for the attachments to the letter of 30 May 2005, it is evident from an email of
21 June 2005 that the Police returned the documents to Mr Y.85 An actual copy of the enclosures originally conveyed with the letter was not put before the Tribunal. However, it has been possible to determine what the enclosures in fact were, from the text of the letter itself.
124. It is evident that there were at least 69 pages of documents;86 those pages included:
124.1. The MacVicar report endorsed with Ms R’s personal notes.87
124.2. A letter sent by Ms R to ACC.88 The letter contained considerable personal and sensitive information given by Ms R.
124.3. A report prepared in 1992 by an ACC counsellor, Ms S Clare-Williams (the Clare-Williams report).89 The letter contains considerable sensitive and personal information given by Ms R.
124.4. A 1995 report prepared for the ACC about Ms R by a Ms S Sweeney, following counselling sessions, again with regard to past abuse, (the Sweeney report).90
124.5. A letter obtained from the Writers’ Guild by Mr Y about Ms R, dated 15 May
2005.91
83 ABD 89.
84 ABD 53.
85 ABD 130.
86 ABD 100.
87 ABD 92, p4 of the letter.
88 ABD 92, p4 of the letter; the letter is at ABD 317.
89 ABD 92, p4 of the letter, the letter itself is at ABD 301-2.
90 ABD 93, p5 of letter, the document is at ABD 305-6.
91 ABD 93, p5 of letter, the document is at ABD 74.
124.6. A letter written in 1995 by an intern psychologist and a clinical psychologist to a GP by an intern psychologist and a clinical psychologist, again relating to counselling for sensitive matters, and containing highly personal information given by Ms R.92
124.7. Reference is also made in the letter to a bundle of documents which had been
placed before the Psychologists’ Board;93 it is possible that other documents from that bundle were included in the material sent to the Police, given the volume of pages sent.94
125. The annexures to the letter sent to the Police on 8 February 2006 were presented to the
Tribunal in evidence,95 and included:
125.1. Page 1 of the Clare-Williams report.
125.2. The Sweeney report.
125.3. The MacVicar report with Ms R’s handwritten notations.
125.4. Part of the transcript from the Psychologists’ Board hearing.96
125.5. Documents from the South Canterbury Writers’ Guild.
126. Turning to the subparticulars:
126.1. Subparticular (a): the MacVicar report with Ms R’s personal notations was supplied to the Police.
126.2. Subparticular (b): other reports to the ACC relating to Ms R as described in the previous two paragraphs were supplied to the Police.
92 ABD 100, p12 of the letter; the letter is at ABD 303-4.
93 ABD 347.
94 ABD 69, ABD 100.
95 Tab 13.
96 P32, and 57-58.
126.3. Extracts from the transcript of the hearing before the Psychologists’ Board in March 2005, were supplied to the Police, notwithstanding the suppression order which had been made by the Psychologists’ Board.97
127. As to confidentiality, Mr Y himself confirmed that a number of the reports had been
provided to him at the commencement of the counselling relationship.98 They were clearly given in a confidential setting, and as previously determined, were of a confidential nature.
Lawful justification?
128. Particulars 1, 2 and 4 allege that Mr Y acted without lawful justification.
129. It is convenient now to consider Mr Y’s motivation for making the disclosures.
130. He said he did so because he needed to assemble material in order to prepare for his appeal against the Board’s decision; in particular he wanted to advance a submission as to his belief that there had been a pattern of lying on the part of his client, and that the Board’s decision was founded on evidence, therefore, that was not true;99 he also said that he had every right to approach the Police regarding the commission of a criminal offence, and a civic duty to bring to the attention of the authorities an abuse of the processes of the Psychologists’ Board.100
131. To put these assertions in context, it is necessary to consider the terms of the
Psychologists’ Board decision – by reference to the Board’s decision itself, but also by reference to what the High Court said of that decision when the appeal was ultimately heard.
132. There were three charges before the Board. The first was unproven. The second was proven, but reversed on appeal on an onus point. The Board said, however, that there
97 The provision of these documents by Mr Y to the Police was properly admitted by him.
98 T49/19, 153/14.
99 Brief paras 20 &27.
100 Brief para 24.
were credibility elements in this charge. The third charge relied heavily, the Board said, on credibility.
133. The High Court Judge was required to consider the issue of credibility, including Mr Y’s allegation that Ms R was “an habitual complainant”. When reviewing the cross examination of Ms R by Mr Y at the Board hearing, the Court held Mr Y had been given significant latitude, and that much of the cross-examination material seemed of marginal or no relevance to the issues before the Board. The Court said Mr Y could not possibly complain about not having been able to range over the full field of topics that suited him. He concluded that the credibility findings made were open to the Board.
134. In short, credibility was a live issue before the Board and on appeal, although the High Court held the matters Mr Y wanted to raise were peripheral to the particulars of charges 2 and 3, as considered by the Board.
135. Against that background, it is necessary to consider Mr Y’s actual motives when making the disclosures; the Tribunal deals with this issue in chronological order – first the disclosures to the Police, then the disclosures to Mr E.
136. In considering the disclosures to the Police, the following statements are relevant:
136.1. 23 June 2005: an email from Mr Y to the Police. In it, he stated:
“My complaint is not against the Board, or ACC, but against the person who chose to lie. The disciplinary process only has relevance in that it was the environment in which R lied.”101
136.2. 24 June 2005: a further email from Mr Y to the Police. In it, he said:
“I have laid a complaint with respect to allegations of criminal behaviour.
If the matter ie the criminal allegations are to be determined in part by an appeal (if that proceeds), and I gather the logic is that I would bring up allegations within the context of the appeal. That logic is flawed. How for example would I have access to Police files ... . The answer is
101 ABD 127.
of course that I would never have access to that material to prove R lied again.”102
136.3. 26 June 2005: an email from Mr Y to the Police. In it he said:
“I have gone to great lengths to assert the difficulties with the Board
(caused by R) are of little relevance ...
I went to great lengths to point out in some detail the consistent lies and inconsistencies in evidence by R ...
Again, the matter between myself and the Board has no relevance apart from showing the environment against which the allegations are made. R lied.
... I have laid a complaint and will expect the discharge of statutory duties as required ...”103
136.4. 8 February 2006: a letter from Mr Y to Sergeant D. In this letter, Mr Y requested that the Police investigate his allegations in relation to Ms R. He said:
“... in my view R is a pathological liar, with a very creative, imaginative and dangerous disposition. She has caused difficulties for CYFS, the Police, ACC, the Mental Health Services, including Hillmorton Hospital, two counsellors, a general practitioner in Christchurch, and others including myself.
...
I am aware of my civic duty in presenting this material ... . Such matters should be dealt with immediately and openly ... . The credibility of the Police is an important issue in this regard as well in other matters.”
137. In this material, Mr Y was at pains to point out that he was not attempting to obtain evidence for the intended appeal; rather, he wanted charges including fraud and perjury investigated.
138. A telling piece of relevant evidence arises from a complaint that Mr Y lodged about Ms R, with the ACC in December 2005. After some communications with ACC, it was not pursued at that stage. But it was pursued subsequently, in October 2007, by which time the appeal to the High Court had been disposed of. The disclosures to the
102 ABD 137.
ACC were not for the purposes of obtaining evidence for an appeal. Very similar disclosures were made to the ACC as were made to the Police.
139. The Tribunal considers the communications sent at the time to the Police are a more revealing indicator of motive than the assertions made by Mr Y at the hearing.
140. Significantly, in the statements made by and on behalf of Mr Y to the PCC, there was no mention that the disclosures were made for litigation reasons.104
141. The Tribunal has concluded that the primary motivation in complaining to the Police was to try and have Ms R investigated and prosecuted.
142. There may have been an underlying motive to obtain support for the appeal. Such was not expressly stated, however, and indeed Mr Y was attempting to persuade the Police to the contrary; and his subsequent complaint to the ACC could not be justified on the basis that evidence for an appeal was required.
143. As already stated, Rule 11(2)(I)(i) of the 1994 Code permits disclosures to the authorities, including for the purposes of investigation and prosecution if “necessary”. As Rule 11(3) makes clear, such disclosures should only be made to the extent necessary.
144. The Tribunal does not consider that it was “necessary” for Mr Y to make the disclosures that he did, in order to report possible offences. In a situation where there were clearly significant duties of confidentiality, it would only have been appropriate, or necessary, for that practitioner to approach the Police with the utmost care. For example, as follows:
144.1. He would need first to discuss the issue with a senior practitioner, so as to ensure he understood the obligations, and if so whether it was “necessary” to take any steps at all. An important consideration at this stage would have been
103 ABD 143.
104 ABD 82 & 85.
the guidance available from the Code of Ethics as to the circumstances of when it is permissible to disclose (Principle 1.6.10). Such a review would have suggested that what Mr Y proposed to do, and the way he proposed to go about it, was not in accordance with the Code of Ethics.
144.2. Even if it was considered justifiable to proceed, the practitioner would need to inform the Police that he wished to refer a matter for investigation to them, but that was under an obligation of confidentiality and that there was a suppression order in existence in respect of subject information.
144.3. He would need to state the necessary documents should be requested from the Psychologists’ Board by the Police. Such a request would have led to the confidentiality issues being considered in a managed way by the Board.
145. In other words, a very careful process needed to be undertaken which acknowledged and respected the obligations of confidentiality to the greatest extent possible.
146. When approaching the Police, Mr Y did not go about the matter in this way. He approached the issue in an inappropriate fashion, disclosing multiple documents without regard to the effect on his client, and doing so in an intemperate and unprofessional way.
147. It has already been mentioned that several of the persons involved in the chronology (who were not health practitioners) were concerned about what he was doing – Mr H, Mr E and the Police themselves. Mr Y had no insight into the issues about which they were expressing caution – a fact which the Psychologists’ Board had perceptively identified following the original disciplinary hearing.
148. Accordingly, it is not possible to conclude that it was “necessary” for Mr Y to make the significant disclosures to the Police about Ms R’s private and confidential information.
149. As previously stated, the Tribunal has also concluded that a possible underlying (and secondary) factor was a wish to obtain evidence for the intended appeal.
150. Again, the Tribunal does not consider the disclosures were necessary for this reason, because:
150.1. It is not the role of the Police to “provide evidence” for a litigant in a civil action.
150.2. The Police themselves made that very clear at an early point.
150.3. The matters about which Mr Y was complaining were hardly likely to be relevant on appeal; indeed the Judge commented on a number of the topics Mr Y was raising as being “... of marginal or no relevance to the issues before the Board”, and it appears that comment was made in the context of a submission that Ms R was “an habitual complainant”, and therefore unreliable.
151. Again it is necessary to be clear as to the proper process which should have, and could have been followed where an intended appellant might wish to consider disclosing documents to a third party. An example of the procedural possibilities is as follows:
151.1. Advice should have been sought from a senior practitioner.
151.2. An application could have been made to the High Court for leave to use confidential documents (most of which appear to have been before the Psychologists’ Board in any event) for the purposes of preparing for the appeal.
151.3. That would have enabled any issues of confidentiality to be squarely confronted and debated, with a Court ruling then able to be made as to whether it was necessary to do so, having regard to the guidance of the Code of Ethics and the 1994 Code.
151.4. As before, such a careful process would have ensured there was maintenance of the significant obligations of confidentiality, and any disclosure would have occurred only under the oversight of the Court.
151.5. An aspect of the issue related to the existence of the suppression order, and any modification of that could have been squarely confronted and managed appropriately by the Court.
152. The Tribunal is far from satisfied that it was “necessary” to make disclosures to the Police, in the way in which it was done, for a possible purpose of obtaining evidence for the intended appeal.
153. In summary to this point, then, in respect of particular 4, the Tribunal does not consider there was any legal justification for the disclosures made to the Police on either of the grounds described in Rule 11(2)(I).
154. Turning to the disclosures made to Mr E, particulars 1 and 2 require consideration of the same issue. The timing of the communications with Mr E, and the disclosure then made, is significant. For some time, Mr Y had been regarding Mr E as a relevant person in connection with the investigations he wanted the Police to undertake. He had been attempting to have the Police investigate Ms R since May 2005, and with increasing persistence in the latter part of that year. He wrote to the Police again on 8
February 2006, and by this time his requests were becoming more strident.
155. A short while later, he contacted and then visited Mr E. Significantly, in his email of
14 March 2006, he expressly told Mr E he wanted the Police to prosecute.
156. It was not until 10 April 2006 that the Police advised they would not do so.105
157. The communications with Mr E, then, were in the period when Mr Y was trying to have a Police investigation for offences such as fraud and perjury commenced. The initiatives involving Mr E must be understood as part of his wish to have Ms R investigated. The visit was directly linked with the initiatives he was undertaking with the Police.
105 ABD 197.
158. Rule 11(2)(I)(i), which requires that the disclosure must be necessary for the undertaking of investigations and prosecutions, could not apply. It was not for Mr Y to do the job of the Police, while they were considering whether an investigation should be undertaken. The disclosure was not necessary for that reason.
159. Turning to Rule 11(2)(I)(ii), and the possible motive of requiring evidence for the intended appeal. As the Tribunal has just discussed it does not consider that was the main reason for the approach to Mr E. If he did want to seek leave to produce evidence from Mr E for the purposes of the appeal, there were steps which could have been taken in that regard, such as making an application to the High Court, as discussed above. It was not necessary for Mr Y to disclose the material in the risky way he did, particularly when one has regard to the imperatives of Rule 11(3) – disclosures should only be to the extent necessary.
160. A submission was made that Mr Y was not a lawyer, and could not be expected to have understood all the legal ramifications of what he was doing. The Tribunal cannot accept such a submission, given the clear guidance provided in the Psychologists’ Code of Ethics (for example). It is incumbent on all practitioners to be very clear indeed about the onerous obligations they have as to confidentiality and privacy, and the Code of Ethics was the obvious document to which reference can easily be made by any psychologist.
Summary of components of particulars:
161. Drawing the threads together, the Tribunal is satisfied to the relevant degree of proof that:
161.1. Each of the particulars is made out, apart from particulars 1(b) second limb and
2(b).
161.2. It is satisfied that there was no consent or authorisation to disclose, for the purposes of particulars 1, 2 and 4.
161.3. It is satisfied that there was no legal justification for the disclosures, for the purposes of particulars 1, 2 and 4.
162. The Tribunal is satisfied that the conduct under review amounts to being both very serious negligence, and malpractice. It was not justified given the significant professional and ethical obligations which Mr Y had.
Warrants discipline?
163. Counsel for Mr Y submitted that what was really at issue was a breach of the suppression order, which was an issue that should go back to the Board. However, the Tribunal considers:
163.1. Section 100(g) of the HPCA Act indicates that a breach of an order of the Tribunal (the body which has replaced the Psychologists’ Board for disciplinary purposes) could be the subject of discipline.
163.2. Prior to the HPCA Act, practitioners were disciplined where they were in breach of disciplinary orders for example, Duncan v Medical Disciplinary Committee (supra).
163.3. The focus in this case has been the breach of professional obligations; having regard to the objects of the Act and the importance of maintaining professional standards, the Tribunal considers it entirely appropriate for the issues raised to be dealt with as a disciplinary matter, whether or not contempt proceedings might have been considered appropriate.
164. The Tribunal has considered the following factors as being relevant to threshold:
164.1. The established conduct referred to in the charge was over a period of many months (May 2005 to March 2006).
164.2. Ms R felt very threatened and upset by the breach, quite justifiably.
164.3. Even lay people questioned and felt discomfort about the breaches.
164.4. Immoderate and abusive language was used.
164.5. The practitioner continued to demonstrate a complete lack of insight – even when the Board itself had alluded to the issue of insight in its decision in the context of confidentiality.
164.6. He disregarded the professional opinion he obtained from the Police, and became angry about it.
164.7. Overall there was a flagrant disregard for the rights of confidentiality.
164.8. Confidentiality is at the heart of the profession of psychology, and why clients feel able to place their trust in their psychologist.
164.9. Mr Y deliberately put his own interests ahead of those of his client.
164.10.These issues clearly have implications for members of the public, both those who might consult Mr Y, and generally.
164.11.The conduct cannot be explained as simply being the misguided initiatives of someone not well informed as to legal processes. Mr Y ignored a fundamental tenet of his profession, and did so knowingly (because third parties raised the question of the propriety of what he was doing with him).
Penalty:
166.1. Submissions for the PCC are to be filed within 14 days of the date of this decision.
166.2. Submissions for Mr Y are to be filed within 28 days of the date of this decision.
DATED at Wellington this 16th day of October 2009
................................................................ B A Corkill QC
Chairperson
Health Practitioners Disciplinary Tribunal
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URL: http://www.nzlii.org/nz/cases/NZHPDT/2009/255.html