Auckland Standards Committee 5 v Robert John Moody
Jurisdiction | New Zealand |
Judge | D F ClarksonP,Mr J Bishop,Ms C Rowe,Ms S Sages JJ,Mr B Stanaway |
Judgment Date | 02 September 2016 |
Neutral Citation | [2016] NZLCDT 23 |
Docket Number | LCDT 011/15 |
Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
Date | 02 September 2016 |
IN THE MATTER of the Lawyers and Conveyancers Act 2006
[2016] NZLCDT 23
MEMBERS OF TRIBUNAL
Judge D F ClarksonP
Mr J Bishop
Ms C Rowe
Ms S Sages JJ
Mr B Stanaway
LCDT 011/15
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Application for a permanent stay of proceedings on the grounds of ill health of the practitioner — the practitioner was charged in June 2015 with serious failures in his charging practices, including overcharging, to the extent that his conduct was alleged to amount to misconduct, (pleaded with lesser alternative charges) — the medical evidence was that the practitioner was suffering from frontotemporal dementia and would not be able to recall detail as to what he had in his mind at the time he invoiced his clients and that he could not make suggestions to his lawyer about how to deal with the allegations — duty of practitioners where they noticed a gradual deterioration in a colleague — whether the practitioner's condition meant that he would be denied natural justice under s236 Lawyers and Conveyancers Act 2006 (rules of natural justice) if a stay was not granted — whether suppression should be granted in regard to details of the practitioner's illness.
Ms Paterson (February) and Mr Hodge (July) for the Standards Committee
Mr Godinet for the Practitioner
This decision is the first in which the Tribunal has been asked to consider a permanent stay of proceedings on the grounds of ill health of the practitioner. The practitioner was charged in June 2015 with serious failures in his charging practices, including overcharging, to the extent that his conduct was alleged to amount to misconduct, (pleaded with lesser alternative charges). This allegedly covered a period from 2008to 2013.
Although Mr Moody initially represented himself, his family was concerned as to his capacity to do so and Mr Godinet stepped in to assist. Counsel then experienced significant difficulties in obtaining clear instructions from the practitioner and finally, an assessment of Mr Moody by a psychogeriatrician, Dr Jane Casey, was undertaken.
In the interim, the Tribunal had become so concerned about Mr Moody's functioning and the risk posed to clients, as to initiate a hearing as to interim suspension. An order was made suspending Mr Moody from practice on 17 November 2015.
On 17 February 2016 an application was filed seeking a permanent stay of the proceedings because the practitioner suffered from dementia and therefore was said to lack the capacity to instruct and retain counsel and fully participate in the proceedings. The application relied on the evidence of Dr Casey who was available for the hearing on 22 February 2016.
Having heard Dr Casey's evidence, and while accepting the high calibre of that evidence, the Tribunal was concerned about making such a significant decision on the evidence of only one doctor, who had been retained by the practitioner.
The hearing was adjourned to obtain a further report from a neurologist, Dr Ernest Willoughby, who had seen Mr Moody on a number of occasions, dating back to 2010.
The stay hearing resumed on 21 July 2016 when Dr Willoughby was also available for cross-examination.
Following his evidence, the Standards Committee did not oppose the stay.
We are grateful to Mr Hodge and Ms Paterson for their detailed and fair submissions filed on behalf of the Standards Committee which have greatly assisted the Tribunal in conducting the necessary balancing exercise in this difficult matter.
Before detailing the medical evidence we note that it was agreed at the conclusion of the hearing that in order to enunciate proper reasons for the decision and provide guidance for future similar situations, it would be proper to record the nature of Mr Moody's illnessand the evidence supporting his lack of capacity. To this extent the interim suppression order concerning medical information is therefore lifted. Howeve, it remains in relation to matters which are of a more personal or personality related nature. These more private aspects of the illness are not required to be published in order to provide a coherent account of the situation and we consider the practitioner's interests outweigh the public interest in this limited aspect. For that reason there will be an order that any inspection of the file is to be subject to the approval of the Chair. The decision itself omits reference to such matters and therefore may be published in full.
Dr Casey is a consultant psychiatrist specialising in old age care and is a practitioner of considerable experience. Dr Casey had examined Mr Moody in October 2014, twice in late 2015 and twice in early 2016. She diagnosed him as suffering from frontotemporal dementia. Dr Casey's evidence is that the frontal lobes are responsible for personality, decision-making, problem-solving, judgement and insight and the temporal lobes are more responsible for memory. She confirmed that in 2013 a CT scan had indicated some frontal lobe atrophy as being evident.
Dr Casey described Mr Moody's presentation and the formal cognitive testing undertaken by her. In particular Dr Casey referred to the Addenbrookes 3 Cognitive Examination, in which a cut-off of 82 out of a score of 100 normally leads to a diagnosis of dementia. The practitioner's score was 63 and thus he was significantly impaired. Unfortunately his level of insight was low and the issues of insight and denial had been problematic for some years according to both Dr Casey and Dr Willoughby, neurologist, who also gave evidence. Dr Casey explained how an intelligent and educated person such as Mr Moody often has reasonably well...
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