Gravatt v The Coroner's Court At Auckland Hc Ak

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 04 March 2013
• Neutral Citation: [2013] NZHC 390
• Docket Number: CIV 2012-404-001684
• Court: High Court
• Date: 04 March 2013

BETWEEN

Gary Lance Gravatt

Plaintiff

and

The Coroner's Court at Auckland

First Defendant

and

Auckland District Health Board

Second Defendant

[2013] NZHC 390

CIV 2012-404-001684

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal from a Coroner&s court decision prohibiting publication under s76 Coroners Act 2006 (“CA”) (Coroner may prohibit making public of evidence givenat any part of inquiry proceedings) of the names of the health professionals responsible for the care of the plaintiff&s son who died from meningococcal disease — suppression order granted in the interests of justice and personal privacy — Coroner said that publication would mean that the health professionals would likely be subject to unfair reporting in the media, publication would result in a form of individual punishment, it would deter health professionals from seeking employment in NZ and would undermine confidence in the public health system — whether suppression order breached s14 New Zealand Bill of Rights Act 1990 (freedom of expression) and the principle of open justice without proper justification — whether name suppression was inconsistent with the scheme and purpose of the CA — whether irrelevant considerations were taken into account.

Counsel:

G Illingworth QC and C R Baird for Appellant

A M Adams and H H Ifwersen for Second Defendant

M McClelland for Estate of Dr Black

JUDGMENT OF Whata J

INDEX

	Paragraph
Introduction	[1]
The issues	[2]
Background
The Coroner's findings	[5]
The prohibition decision	[19]
Pleadings	[26]
Summary of argument
Plaintiff	[30]
Auckland District Health Board	[33]
Affected Person	[35]
Jurisdiction	[36]
Freedom of speech and open justice	[38]
Coroners Act 2006
Relevant sections	[44]
An error about public order	[59]
Interests of justice	[63]
Personal privacy	[70]
Overall assessment of decision	[82]
Result	[83]
Permanent suppression	[89]
Costs	[90]

Introduction

1 On 8 July 2009 Zachary Gravatt died of meningococcal disease — C strain. Coroner Shortland undertook an In Chambers hearing into the circumstances of his death. The Coroner made multiple recommendations under s 57(3) of the Coroners Act 2006, in effect recommending systemic change to the assessment and treatment of patients. The Coroner also resolved, in a separate ruling, that the identities of the health professionals responsible for Zachary's care on 8 July should be prohibited from publication. He said publication of their identities “would effectively be punishing individuals for an overwhelmed and over stressed system”. He was satisfied that a permanent suppression order was “in the interests of justice, decency, personal privacy and with an emphasis on public order”. The plaintiff, Zachary's father, challenges the decision to suppress the identities. He says that suppression violates freedom of expression and the principle of open justice without proper justification.

The issues

2 The apparent simplicity of the plaintiff's claim belies its complexity. I must first identify the content and limits of my jurisdiction to examine the decision of the Coroner, having regard to orthodox review principles but also in light of the principle of open justice and the right affirmed by s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) to impart information.

3 I must examine the scope of the Coroner's power to suppress information under s 74 of the Coroners Act 2006, which states:

74 Coroner may prohibit making public of evidence given at any part of inquiry proceedings

If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of-

• (a) any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and

• (b) the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.

4 I must then review the content of the decision to suppress and assess whether the conditions prerequisite to the exercise of the power under s 74 were present. If I find a material error, I must determine whether I should confirm, revoke or modify the decision to prohibit publication of the identities of the affected health professionals.

Background

The Coroner's findings

5 The full context to these proceedings is detailed in the Coroner's findings on the circumstances of Zachary's death. It is necessary to record those findings at length to properly understand the suppression decision and the respective claims of the parties.

6 The facts are essayed by the Coroner as follows:

[31] At about 4.00 am on 8 July 2009, Zachary Gravatt awoke in extreme pain in his right groin, with headaches and being feverish.

[32] Zachary was a fourth year medical student and had been in contact with people who had the H1N1 flu virus in the weeks preceding this illness.

[33] Zachary made an appointment to see his general practitioner (GP), Dr Bulmer, at the Herne Bay Medical Centre for 12.00 pm. Dr Bulmer saw Zachary at 12.13 pm.

[34] Dr Bulmer examined Zachary and recorded a presentation of headaches, rigors, with a high fever. His temperature was 39 degrees Celsius. His respiratory rate had increased to something like 28 breaths per minute. He had a soft abdomen with tenderness in the right inguinal region. There was no record of any cough or sore throat.

[35] Important to note there was no rash or sign of meningism.

[36] Dr Bulmer could not find an obvious explanation to the symptoms and considered the H1N1 flu as the most likely cause, given Zachary's exposure to the virus. At the time Auckland had experienced high numbers of people showing similar symptoms at medical clinics and high numbers of hospitalisation, what was described at the time as a pandemic flu virus.

[37] Dr Bulmer also considered a differential diagnosis as possibly pneumonia.

[38] Zachary had taken paracetamol at 11.00 am. At about 12.15 pm intramuscular prochlorperazine was administered. Dr Bulmer placed a phone call to the medical registrar who was not available to take the call. The registrars were very busy because of the winter workload and influenza admissions. Dr Bulmer's call was transferred to Dr Peter Black (“Dr S”) at the Auckland City Hospital who advised the registrar of Zachary's presentation. This was followed up by a letter.

[39] An ambulance was called for and transportation was arranged to take Zachary from the Herne Bay Medical Clinic to the Auckland City Hospital. The ambulance arrived at the Emergency Department of Auckland City Hospital at about 1.35 pm.

[40] Zachary continued to complain of an upper abdominal pain and through his lower chest. He continued to have an elevated respiratory rate. Ambulance documentation records: “no rash, headache, no neck stiffness, slight nausea — patient took Maxolon recently, vomiting this a.m. (morning).”

[41] The St John's report shows that Zachary had been in contact with an H1N1 patient.

[42] The physiological data recorded on the ambulance notes confirmed a number of symptoms including an elevated respiratory rate, 28/min with tachycardia rate of 130 beats per minute, a febrile temperature at 39 degrees Celsius and his skin hot to touch. The notes record hypotension (100/50) and a slight dizziness on standing. It showed he had chest pains, headaches, rigors and other body pains. He had vomited that morning and felt unwell and tired. The notes also show there was a failed attempt at obtaining an IV line in transit.

[43] When Zachary arrived at Auckland City Hospital he was assessed in the Emergency Department by the triage nurse using the Australasian College of Emergency Medicine triage scale. At 1.43 pm Zachary was assessed and triaged at “Category 3”. This designated score “Category 3” has a priority requiring medical attention within 30 minutes of arrival, as benchmarked by the Australasian College of Emergency Medicine.

[44] The Emergency Department triage nurse in attendance, Nurse Claire Child, (“Nurse T”) confirmed she had read the ambulance report and received a verbal handover from ambulance staff. This was in accordance with the normal policy and practices.

[45] She also read the GP's referral and had assessed Zachary's presentation as an influenza-like illness with breathlessness but Zachary's pain level was indicated to be of moderate severity.

[46] Important to note that on this particular date of presentation it was a busy day for the acute services and “Nurse T” had been sharing the duties with one other triage nurse in dealing with a stressful workload including the added workload from the pandemic influenza.

[47] After triage assessment in the Emergency Department, Zachary was able to be transferred directly to the APU as he had been referred by his GP. He was one of four new admissions to the APU at that time.

[48] In the APU, occupancy was about 90% from 8.00 am until 12.00 pm, another 80% from 12.00 pm onwards.

[49] Zachary's presentation coincided with the first season of H1N1 influenza A (referred to as “swine flu”) and peak hospital presentations of both seasonal and H1N1 influenza A.

[50] Zachary was placed into a six bedded room (room 3) which was being used for patients with suspected H1N1 influenza. There was a staff nurse present at all times with the six patients.

[51] Emma Hill (“Nurse A”) is a nurse educator attached to the APU. Given the APU was so busy that day she...