Coy v Commissioner of Police
 NZEMPC 88
IN THE EMPLOYMENT COURT CHRISTCHURCH
In the Matter of proceedings removed from the Employment Relations Authority
Scott Fairclough, Counsel for Plaintiff (by video conference from Christchurch)
Antoinette Russell and Sally McKechnie, Counsel for Defendant (in Wellington)
Personal grievance claim — consideration of preliminary issues as to whether the plaintiff could assert privilege in psychologist's notes; whether the defendant was entitled to “redact” parts of a document; whether correspondence from the defendant to the Privacy Commissioner was privileged; and whether the plaintiff's husband who had been intimately involved in the lead up to the proceedings could act as both an advocate and a witness.
Held: In relation to the privilege and psychologist communications, this decision should be seen as confined principally to the circumstances of these particular parties as the relevant events occurred in 2003 and it was arguable that the law had changed since then. Disclosure of documents in the Employment Court was governed by r37 Employment Court Regulations 2000. Documents must be relevant to the proceedings. Disclosure could be resisted on the grounds that it was injurious to the public interest that there be disclosure of the documents. The discretion exercisable by the Court was broad one but principled consistency was important. Although proceedings in the Employment Court were not subject to the Evidence Act, the Court had long been guided by both common law and statute on matters of both evidence and disclosure/discovery of documents. Under r44(3)(c), the Court must conduct a similar balancing exercise to that in s69 Evidence Act 2006 (conferring an overriding discretion as to confidential information), to determine whether disclosure would be injurious to the public interest. There was authority that s69 covered not only privilege of communications where these might be sought to be disclosed in evidence, but also disclosure or discovery of documents pre-trial.
The police trauma policy and associated protocols and codes referred to in it, contemplated generally that consultations would confidential between patient and psychologist. At the time the communications and notes were made, the law governing the position provided an expectation of confidentiality. C did not consult the psychologist for the purposes of litigation but for the restoration of both her health and the parties' employment relationship. There would be a real risk that police officers would be unlikely to take up the offers of employee assistance under the defendant's trauma and other relevant policies if there was known to be a risk of subsequent disclosure of intimate communications. It would therefore be injurious to the public interest if confidential communications made during these consultations were not protected in subsequent legal proceedings.
With regard to redaction of the performance assessment it was for counsel to assess relevance in terms of a pleading — counsel had a professional obligation to disclose relevant documents or parts of documents. If counsel assured the Court that material was not relevant, the Court would usually not second guess them. However where there was doubt in the mind of a party about the relevance of a document that had not been disclosed, counsel may provide a brief description of the nature of the redacted material or agree to a Court assessment of the documents.
In relation to the claim of privilege for defendant's correspondence to the Privacy Commissioner, the s96(4) Privacy Act provided that information supplied in the course of an inquiry or in proceedings before the Commissioner was privileged in the same manner as if they were court proceedings. Section 96(1) confined the application of the section (including subs (4)) to “the Commissioner” and “every person engaged or employed in connection with the work of the Commissioner”. The defendant's correspondence with the Commissioner was privileged statutorily and the defendant could not waive that privilege, nor could the Court to override the statutory privilege.
As to whether C's advocate could also appear as a witness cl 2 of Schedule 3 Employment Relations Act 2000 provided that any party to any proceedings before the Court may be represented by an agent. Section 72 Evidence Act provided that a person who was acting as a juror or counsel in a proceeding was not eligible to give evidence in that proceeding except with the permission of the Judge. Subsection (3) included an employment advocate. The Employment Court did not come within the definite of “court” in the Evidence Act and there was no other reference to employment advocates in the Evidence Act. The specific provision in cl 2 of Schedule 3 Employment Relations Act prevailed over the reference to an employment advocate being in the same position as counsel in s72 Evidence Act and an agent was not precluded from that role by being a witness. However the Court was entitled to control its own procedure, and in this case the advocate/witness's length and depth of involvement in the C's case was such that the Court was not satisfied that he could adhere to the requirements of detachment and objectivity usually demanded of counsel.
INTERLOCUTORY JUDGMENT OF Chief Judge Gl Colgan
There are four preliminary issues for decision in this proceeding which is to go to trial next month.
The first is an important question whether the plaintiff is entitled to assert privilege in a psychologist's notes. In view of the absence of authoritative judgments of any court dealing with issues of privilege in psychologists' records, and more especially since the Evidence Act 2006 affecting this issue came into force, I would have wished ideally to have heard submissions from the professional body of psychologists. This question has, however, arisen only shortly before the trial and requires urgent decision. The issue involves, primarily, these parties but also invokes considerations applicable to other police officers' consultations with and treatment by psychologists, and even more generally, other patients or clients of psychologists. In these circumstances the decision on this issue should probably be seen as confined principally to the circumstances of these particular parties. That is not least because the relevant events occurred in 2003 and it is at least arguable that the law has changed since then.
Whilst still employed by the Commissioner, but to do with matters that subsequently formed her personal grievances alleging unjustified disadvantage in employment and unjustified constructive dismissal, Ms Coy consulted with and was treated by registered clinical psychologist John Dugdale of Christchurch. This was, however, pursuant to an employee assistance programme operated by the defendant who paid for the consultations and treatments. These were governed by protocols agreed between the defendant and registered psychologist practitioners providing service to police staff under the defendant's “Trauma Policy”. Under this policy and said to be the “guiding principle” was “confidential support contact between members of Police and mental health professionals”. “Support” was defined as “treatment and/or assessments for the purposes of treatment.”
The first “Supporting principle” was that of “Confidentiality” and provided:
… all information revealed by, and discussed with, police staff seen by a Practitioner is treated in accordance with the provisions of the Code of Ethics of the New Zealand Psychologists Board and the Privacy Act 1993.
The relevant psychologists' Code of Ethics of the NZ Psychological Society, the NZ College of Clinical Psychologists and the NZ Psychologists Board provided relevantly as follows.
Principle 1.6 (“Privacy and Confidentiality”) provided:
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.
1.6.6 Psychologists store, handle, transfer and dispose of all records, both written and unwritten … in a way that attends to needs for privacy and security.
1.6.9 Psychologists do not disclose personal information obtained from an individual … without the informed consent of those who provided 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:
(d) Legal requirements: Where a psychologist is compelled by law to disclose information given by a client …
Also relevant is the Health Information Privacy Code 1994 promulgated under the Privacy Act 1993 (the Privacy Act). Rule 11 of this code prescribes “Limits on Disclosure of Health Information” and, summarised, provides that what is described as “A health agency” must not disclose health information except to the individual concerned or the individual's representative in certain circumstances on the giving of authority by the individual or her representative. There is a specific exemption permitting non-compliance where this is necessary “for the conduct of proceedings before any court or tribunal (being proceedings that have been...
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