W v Health Practitioners Disciplinary Tribunal

JurisdictionNew Zealand
JudgeCollins J
Judgment Date12 March 2019
Neutral Citation[2019] NZHC 420
CourtHigh Court
Docket NumberCIV-2018-485-000287
Date12 March 2019

Under the Judicial Review Procedure Act 20

In The Matter of an application for Judicial Re

Between
W
Applicant
and
Health Practitioners Disciplinary Tribunal
First Respondent
A Professional Conduct Committee of the Nursing Council of New Zealand
Second Respondent

[2019] NZHC 420

CIV-2018-485-000287

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Judicial Review, Medical Practitioners — charge of professional misconduct by having a sexual relationship with a patient — charge based on hearsay evidence — admissibility of statements — natural justice — New Zealand Bill of Rights Act 1990 — Health Practitioners Competence Assurance Act 2003

Counsel:

P Coates and C E J Deans for Applicant

First Respondent abides the decision of the Court

M F McClelland QC and C Billing for Second Respondent

JUDGMENT OF Collins J

PART I
INTRODUCTION
1

The central issue addressed in this judgment is encapsulated in the following question:

Did the Health Practitioners Disciplinary Tribunal (the Tribunal) err when it dismissed an application by W to strike out evidence and stay a disciplinary charge against him?

2

The charge against W, which is based solely upon hearsay statements and circumstantial evidence, is that he committed professional misconduct by having a sexual relationship with S. 1 At the time, W was a drug and alcohol nurse and S, who was 14 years old, was his patient.

3

The principal evidence that W argued was inadmissible is a draft statement prepared by a lawyer employed by a Professional Conduct Committee of the Nursing Council of New Zealand (the PCC), the entity responsible for prosecuting the charge before the Tribunal. 2 That statement was prepared following an interview the lawyer had with S. The draft statement sets out in some detail what S told the lawyer about the sexual relationship between W and S.

4

S has not signed the statement. He has told the PCC he wishes to withdraw the statement and that he “[cannot] ruin [W's] life like this”. The PCC has said S will not voluntarily give evidence and that it will not seek a summons to compel him to be a witness because of its concerns about S's health. Instead, the PCC intends to rely on the hearsay statement prepared by the PCC lawyer.

5

W also challenged the admissibility of statements from five other witnesses for the PCC, which contained hearsay statements about what the witnesses heard S say about the relationship between himself and W.

6

If the hearsay statements are inadmissible, then the charge against W cannot be proven. If the charge cannot be proven, then it should be stayed.

7

The application for judicial review raises the following three sub-issues:

  • (1) Does allowing the charge to be heard without S giving evidence breach W's right to natural justice?

  • (2) Did the Tribunal err in the approach it took when determining the hearsay evidence was admissible?

  • (3) Should the Court consider W's third cause of action in which he alleges the PCC unlawfully obtained evidence after the charge had been laid? This cause of action has been pursued even though the PCC has assured W that it will not rely on the evidence in question when prosecuting the current charge.

8

I have determined the application for judicial review should be granted and the decision of the Tribunal quashed because denying W the opportunity to directly challenge S may undermine his ability to present his defence, thereby breaching W's right to natural justice affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) and Schedule 1, cl 5 (cl 5) of the Health Practitioners Competence Assurance Act 2003 (the Act). I am also satisfied the Tribunal erred in the approach it took when assessing the admissibility of the hearsay evidence under Schedule 1, cl 6 (cl 6) of the Act. As will become apparent, it is unnecessary to address the third cause of action.

9

I am directing the Tribunal to reconsider its decision in accordance with the contents of this judgment.

10

In Part II of this judgment I shall traverse the background facts, including W and S's circumstances and the allegations. I shall then explain the investigation, the charge against W and the Tribunal's decision. It is then necessary to refer briefly to further investigations carried out by the PCC and to summarise the basis of the application for judicial review.

11

Part III sets out the relevant legislation. In Part IV I shall analyse the issues by examining the protection of the health and safety of the public, which is the principal purpose of the Act. Thereafter, I shall analyse W's right to natural justice and then the criteria for admitting contested evidence in hearings before the Tribunal.

12

I have anonymised the name of S as well as W. S is entitled to name suppression under s 98 of the Act. W has interim name suppression from the Tribunal in relation to the current matter. I have also anonymised the names of some individuals and organisations associated with this case in order to protect the identities of S and W.

PART II
BACKGROUND
W
13

W, who is now 49 years of age, became registered as a nurse with the Nursing Council of New Zealand (the Nursing Council) in 1998. From 1999 to 2016 he worked in various roles within the mental health sector, including for the H Trust between 2011 and 2014.

14

In March 2012, W became the drug and alcohol nurse for S, who was 14 years old at the time and had several psychological issues, including substance abuse problems. This role involved managing S's medication, addressing his drug and alcohol abuse, improving his psychological wellbeing, and assisting him to develop social and family relationships.

15

W acknowledges that he did transgress professional boundaries in his efforts to assist S. These transgressions included W giving S a used stereo and laptop. Other gifts given by W to S included hair colouring products, chocolates, and money for energy drinks.

16

The failure by W to maintain appropriate professional boundaries with S, and concerns about the quality of the care that W was providing S, led to a complaint by the H Trust to the Nursing Council on 18 March 2014 (the first complaint). Ultimately, W faced seven charges in his first hearing before the Tribunal, two of which concerned his conduct in relation to S. The other charges related to W's care and treatment of three other patients and included a claim that he had an inappropriate sexual relationship with X.

17

The Tribunal found that W had failed to set and maintain appropriate professional boundaries with S and that these breaches constituted misconduct that amounted to malpractice and brought discredit to the nursing profession. 3 The Tribunal also found that there had been a failure by W to provide S with safe and competent care, which constituted misconduct amounting to negligence, 4 however, this breach did not by itself merit disciplinary sanction. The Tribunal dismissed the charge that W had engaged in an inappropriate sexual relationship with X.

18

The Tribunal censured W and suspended him from practising as a nurse for six months. 5 He applied for and obtained a practising certificate once his suspension ended in mid-2016. By that time however, the current allegation against W had been made to the Nursing Council. As a consequence, W appreciated he had little prospects of employment as a nurse. He has therefore carried out casual work as a handyman and part-time carer for the elderly since early 2016.

S
19

S's biological parents were alcoholics and his mother, who died from alcohol-related asphyxiation, also suffered psychological issues. In 2002, S and two of his siblings were placed in the care of R and G. The three children were adopted by R and G in 2004.

20

Clinical records for S maintained by the H Trust between June 2010 and April 2014, the period during which S was a patient of the H Trust, reveal he has had a very troubled life. In 2010, S's behaviour was so disturbing that the Police Youth Aid Section became involved in trying to address his acts of dishonesty and violence, particularly towards R, his adoptive mother.

21

A psychiatric assessment of S completed in mid-2010 refers to S as having significant challenges with self-regulation, maintaining relationships and learning. The report says S had issues with concentration, impulsivity and hyperactivity and refers to S's acts of rage towards people close to him and his pattern of “lying and aggression to get his emotional needs met”.

22

A summary of S's difficulties, prepared by R and G on 20 August 2010, refers to his temper and acts of violence and that he was a “compulsive liar” who could “tell farfetched stories about himself”.

23

The clinical file for S is replete with entries that suggest he may have had a propensity to make false statements and that he had inappropriate attitudes towards sexual matters. The following examples illustrate these concerns:

  • (1) A clinical psychologist reported on 9 November 2010 that S alleged “he had been assaulted by a man or a spirit inside his home, who had been hiding in his closet where there was a small tunnel which connects with other bedrooms”.

  • (2) There are references in the notes for 19 August 2010 to S allegedly pinching the bottom of a fellow student and threatening to rape her mother. He was apparently stood down from school for five days for this incident.

24

Statements made by S to healthcare providers include an allegation that he had been raped by his biological father, who then committed suicide before the police became involved. An entry for 14 May 2013 in S's clinical notes refers, however, to S sometimes saying his birth father was alive and other times saying he was dead depending on his mood. There are other entries that say S had been in contact with his biological father via Facebook.

25

The difficulties with...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT