A PROFESSIONAL CONDUCT COMMITTEE OF THE NURSING COUNCIL OF NEW ZEALAND v HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL [2020] NZCA 435

A PROFESSIONAL CONDUCT COMMITTEE OF THE NURSING COUNCIL OF NEW ZEALAND vHEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL [2020] NZCA 435 [18 September 2020]NOTE: PUBLICATION OF NAME OF COMPLAINANT PROHIBITED BYS 98 OF THE HEALTH PRACTITIONERS COMPETENCE ASSURANCEACT 2003.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THENAMES OR IDENTIFYING PARTICULARS OF ANY CONNECTEDPERSONS AND THE ORGANISATION ASSOCIATED WITH THIS CASEREMAINS IN FORCE.NOTE: HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL INTERIMORDER PROHIBITING PUBLICATION OF THE SECOND RESPONDENT'SNAME REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA152/2019[2020] NZCA 435BETWEEN A PROFESSIONAL CONDUCTCOMMITTEE OF THE NURSINGCOUNCIL OF NEW ZEALANDAppellantAND HEALTH PRACTITIONERSDISCIPLINARY TRIBUNALFirst RespondentW (CA152/2019)Second RespondentHearing: 12 March 2020Court: Miller, Cooper and Clifford JJCounsel: M F McClelland QC and C E Billing for AppellantNo appearance for First RespondentJ P Coates and C E J Deans for Second RespondentJudgment: 18 September 2020 at 10 amJUDGMENT OF THE COURTA The appeal is dismissed.B The cross-appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The second respondent, W, is a registered nurse. The appellant isa professional conduct committee (the Conduct Committee) of the Nursing Council ofNew Zealand established pursuant to s 71 of the Health Practitioners CompetenceAssurance Act 2003 (the Act). In September 2017 the Conduct Committee laida charge of professional misconduct against W before the first respondent,the Health Practitioners Disciplinary Tribunal (the Tribunal). That charge alleged Whad been involved in an inappropriate sexual relationship with a young man, S, he wascaring for in his role as a drug and alcohol nurse. As matters transpiredthe Conduct Committee proposed to rely on hearsay evidence of S's allegation atthe hearing of those charges.[2] W applied to the Tribunal to strike out that evidence and permanently staythe charge against him. He argued that, in terms of s 18 of the Evidence Act 2006,it could not be established that the circumstances in which S made the statementsthe hearsay evidence relied on provided a reasonable assurance of their reliability.Even if they did, the Conduct Committee could not establish S was unavailable to giveevidence. The Tribunal declined W's application.1[3] W then applied to the High Court for judicial review of that decision, on thebasis the Tribunal had been wrong in law in the way it had assessed the application.1 A Professional Conduct Committee v [W] HPDT Nur17/402P, 9 April 2018 [Tribunal decision].In the High Court Collins J granted the application for judicial review.2 The Judgedeclined, however, to stay the charge against W. Rather, he remitted the matter tothe Tribunal, directing it to undertake a proper evaluation of whetherthe Conduct Committee could proceed on the basis of the hearsay evidence inquestion.[4] The Conduct Committee now appeals the Judge's decision that the Tribunalerred. W cross-appeals, arguing that the Judge was wrong not to stay the charge.Facts[5] S has had, as the Judge commented, a very troubled life.3 His biologicalparents were alcoholics and his mother, who died from alcohol-related asphyxiation,also suffered psychological issues. They were abusive parents. In 2002 S and two ofhis siblings had been placed in the care of R and G. They were subsequently adoptedby R and G. The H Trust, an organisation which provides health services to personssuffering from a range of mental health issues, particularly as associated with drug andalcohol dependency, became involved in S's care in 2010. S continued to suffer froma range of diagnosed mental illnesses, including ADHD, PTSD, reactive attachmentdisorder and possible foetal alcohol syndrome, reflecting his history of neglect andabuse by his biological parents and sexual and physical violence experienced whilstin care placements before he was placed with R and G. As well as those psychologicalissues, S also suffered from drug and alcohol abuse.[6] In March 2012, when S was 14 years old, W — who at the time worked forthe H Trust — became his drug and alcohol nurse. W's role as S's nurse involved himin the H Trust's management of S's medication, addressing S's drug and alcoholabuse, improving S's psychological wellbeing, and assisting S to develop social andfamily relationships.[7] In August 2013, and in response to allegations of professional misconduct,the H Trust terminated W's role in caring for S. In March 2015 W faced a number of2 W v Health Practitioners Disciplinary Tribunal [2019] NZHC 420, [2019] 3 NZLR 779[High Court judgment].3 At [20].charges 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, andincluded a claim that he had an inappropriate sexual relationship with one of thoseother patients, X.4[8] The Tribunal ultimately found that W had failed to set and maintain appropriateprofessional boundaries with S. Those breaches constituted misconduct that amountedto malpractice and brought discredit to the nursing profession. The Tribunal alsofound there had been a failure by W to provide S with safe and competent care, whichconstituted misconduct amounting to negligence. W was censured and suspendedfrom practising as a nurse for six months in respect of all the charges that were madeout.[9] S ceased to be a patient of the H Trust in July 2014. Thereafter S was underthe care of a number of organisations. In November 2015 S was assigned to the careof a mental health nurse. That nurse shortly thereafter advised her employer that, whenshe first met S, S told her he had had a sexual relationship with a previous alcohol anddrug counsellor, the relationship had taken place when S was at high school and hadstopped when S turned 16. S had also told the nurse his counsellor used to grow andsupply cannabis. That allegation, the basis of the current charge, was notified tothe Nursing Council in late 2015 and referred to the Conduct Committee inFebruary 2016.[10] On 1 August 2016 the Conduct Committee arranged for S to be interviewed bya lawyer employed by the Nursing Council. That interview took place in the presenceof a support person for S. The notes of the meeting were subsequently used to formthe basis of a draft statement for S, which was emailed to S two days later. In summarythat statement recorded S as saying:(a) S had first met W through a school friend, before W had been assignedto him as his drug and alcohol nurse. At their first meeting, when S toldW he was gay, W explained he was also gay. W told S he should seek4 That charge was dismissed by the Tribunal.drug and alcohol counselling through the H Trust. If he did so,W would be assigned his counsellor.(b) In late 2011 or early 2012 W had S to stay at his home as part of arespite care arrangement for S's adoptive parents, R and G.Thereafter, S went to W's home on most weekends in 2012. He and Wwould drink alcohol and smoke marijuana. On four occasions they hadengaged in sexual relations after doing so. On each of those fouroccasions they were the only people at W's home.(c) On one occasion W had shown S a "secret room", hidden behind acurtain and two doors. Marijuana was being grown in that room.(d) In 2013 S had left his adoptive parents' home. The caregivers at hisnew residence became suspicious of the relationship between W and S.It was at that time W had ceased to be assigned as S's drug and alcoholnurse. S had become upset when he was no longer able to see W andbecause W had told S he was "too old for me anyway now". As aconsequence of the breakup of his relationship with S, S had attemptedsuicide and had been admitted to hospital.[11] On 26 August 2016, some three weeks after the draft statement was emailed toS, S replied saying: "I would like to withdraw my statement as [I cannot] ruin his lifelike this".[12] The Conduct Committee laid the charge against W in September 2017.[13] At a directions conference on 26 January 2018 the Conduct Committeeconfirmed S would not voluntarily give evidence before the Tribunal and insubsequent submissions advised that it did not intend to apply for S to be summonsed.[14] On 7 February that year the Conduct Committee sought confirmation fromDr Lombard, a consultant psychiatrist then treating S, that "it would be detrimental to[S's] wellbeing that he give evidence at a [T]ribunal hearing".[15] On 14 February the Conduct Committee filed statements from W's adoptiveparents, R and G, as additional evidence it intended to rely on. Hearsay evidence wasto be given by four witnesses: the lawyer who interviewed S; R and G; the nurse towhom S first complained; and the support person who attended S's interview. R andG, whilst they could not give first hand evidence as to W's abuse of S, could give suchevidence as to S's life in general and S's behaviour patterns at the time of andfollowing the alleged abuse. As for that abuse, R and G, the lawyer and the nursewould give hearsay evidence of what S had told them. The support person would givehis recollection of what S had said when interviewed.[16] Dr Lombard confirmed on 22 February S had expressed significant distresswhen talking about past events and that it would be traumatic and stressful for S togive evidence before the Tribunal. Whilst S had been improving, he had suffered asignificant relapse of symptoms when asked about his past trauma by an acquaintance.Any discussion of the issue at that time would be associated with increased symptomsand safety risks. It would not be in S's best interests to attend any hearing at that time.The Tribunal decision[17] In support of his strike-out and stay applications, and reflecting the provisionsof ss 16–18 of the Evidence Act, W pointed to the lack of evidence as to thecircumstances in which S had made the hearsay statements relied on. S had not, itwould appear, confirmed the accuracy of the written record made by the lawyer forthe Conduct Committee who interviewed him; there was no record of the way in whichhe had been questioned; nor was there any relevant evidence of the circumstances ofthe other principal hearsay statement, namely the complaint to the nurse.[18] But even if the necessary assurance of reliability could be established, it couldnot be concluded that S was unavailable to give evidence. The Conduct Committeeclearly knew where he was and how to contact him. S himself simply said he did notwish to proceed with his allegations. Dr Lombard's report did not establish the typeof consequences for S of giving evidence required to find that he was unfit to do soand, in that way, to be properly characterised as unavailable. In those circumstances,the Tribunal should not rely on the discretion the Act gave it to admit evidence thatwould not be admissible under the Evidence Act in a court of law.5[19] W relied, amongst other things, on a previous decision of the Tribunal —Re Vatsyayann — where, in similar circumstances, the Tribunal declined anapplication by a professional conduct committee to base a disciplinary prosecution onhearsay evidence.6[20] The Conduct Committee opposed: it submitted the evidence was not of ahearsay nature. In any event the Tribunal had a broad discretion to consider anyevidence — issues of reliability and credibility could be dealt with by the Tribunal asgoing to weight. As to W's argument the evidence did not establish a prima facie case,the application was akin to a strike-out. In such an application the pleaded facts aretaken to be true. On that basis the Tribunal was not in a position to find there was nocase to answer.[21] W's application was heard at a telephone conference. The Tribunal reservedits decision, releasing it shortly after. It declined W's application, reasoning:7(a) It was satisfied it should exercise its discretion to receive the evidence,even if there was little basis for concluding S was "unavailable" for thepurposes of the Evidence Act. The Tribunal was not a criminal court:it had a disciplinary jurisdiction which looked to protection of thepublic first.(b) It accepted the Conduct Committee's submission that it could deal withany concerns with the quality of the evidence as a matter of weight.The burden of proof remained on the Conduct Committee. It may wellprove challenging to establish the charge.5 Health Practitioners Competence Assurance Act 2003, sch 1, cl 6(1).6 Re Vatsyayann HPDT 338/Med10/152P, 10 November 2010.7 Tribunal decision, above n 1, at [26]–[30].(c) It was important this charge of serious sexual misconduct proceeded.The principal purpose of the Act is to protect the health and safety ofthe public.(d) W was not able to establish any of the grounds for strike out to therequisite high standard. If the evidence, particularly the evidence ofadmissions made by S, was accepted as true for the purposes of hisapplication, then the Conduct Committee case was not untenable.The High Court decision[22] As now relevant, W advanced two grounds of judicial review inthe High Court:8(a) The Tribunal had failed to properly assess the admissibility ofthe hearsay statements in accordance with the requirements ofthe Evidence Act. The Evidence Act required an assessment ofthe reliability of S's hearsay statements, and whether he was actuallyunavailable as a witness. It was also necessary to determine whetherthe probative value of those hearsay statements outweighed the risk thatthey would have an unfairly prejudicial effect on the proceeding.A particular concern was whether W would be in a position to confrontand cross-examine S on the allegations.(b) In those circumstances the Tribunal erred by not staying the proceeding,as the only evidence of wrongdoing was S's inadmissible hearsaystatement.[23] The Judge considered matters first in terms of W's natural justice rights.9Citing a range of high authorities, the Judge concluded the right was integral tothe common law.10 Whilst generally associated with criminal trials, it was therefore a8 W framed his challenge to the Tribunal's decision as an application for judicial review in theabsence of there being a right of appeal from interlocutory decisions of the Tribunal.9 High Court judgment, above n 2, at [73]–[88].10 At [78]–[79].protection which should usually be afforded to a practitioner, particularly in a case ofallegations equating to serious criminality. But the right was not absolute.Accordingly, there would be circumstances where "a complainant has passed away orwhere there are compelling reasons why the complainant cannot give evidence".11In such circumstances it might not be a breach of a practitioner's right to natural justiceto proceed in the absence of an accuser. The requirement for "compelling reasons"reflected the primacy of natural justice, the high threshold for the test of unavailabilityof a witness as provided by the Evidence Act.12[24] The Judge granted W's judicial review application because the Tribunal hadfailed to identify appropriately compelling reasons for its decision. Denying W theopportunity to directly challenge S could undermine his ability to conduct his defence,thereby breaching his right to natural justice.13[25] The Tribunal had also erred in the approach it took when assessingthe admissibility of the proposed hearsay in terms of its discretion. The Tribunal,the Judge concluded, had not undertaken the careful assessment of relevant factorsrequired to justify a decision to admit S's allegations of W's misconduct by hearsaystatements. A two-step process was required:14(a) First, the Tribunal should assess whether the evidence would beadmissible under the Evidence Act.(b) Second, the Tribunal may, nonetheless, in its discretion admitthe evidence if that evidence may assist the Tribunal to deal effectivelywith the matters before it.[26] The decision at the first step required consideration of the usual criteria for theadmission of hearsay evidence at s 18 of the Evidence Act, followed by the generalrequirement that evidence should be excluded under s 8 if its probative value was11 At [81].12 At [81], citing R v Harmer [2002] 3 NZLR 560 (HC); and R v Alovili HC Auckland CRI-2007-404-162, 27 June 2008 at [26].13 At [87].14 At [105].outweighed by the risk it would have an unfairly prejudicial effect on the proceeding.15Section 8 is of particular relevance here due to the requirement at s 8(2) that, incriminal proceedings, the Judge must "take into account the right of the defendant tooffer an effective defence".[27] The decision at the second step was to be exercised judicially, and reasonsprovided for the Tribunal's conclusion.16 The discretionary exercise could, the Judgeconcluded, "be described as a delicate balancing act between the long-standingprinciples of evidence law and the protective purpose of the Act".17 The need toobserve the rules of natural justice placed a "hard limit" on the Tribunal's discretion.18[28] The Judge recognised natural justice considerations were considered at twopoints in the approach he favoured: initially, as the context for the requirement forcompelling reasons. Then, again, as the hard limit on Tribunal's discretion to admitevidence not admissible in a court of law. But he was satisfied the substantive outcomewas not likely to be affected by that order of consideration.This appeal[29] In challenging the High Court decision, the Conduct Committee relied inparticular on the public protection purpose of the Tribunal's professional disciplinaryjurisdiction. This rendered the Judge's "compelling reasons" standard too high.The Judge had overlooked the inquisitorial nature of the Tribunal's processes,as opposed to the adversarial processes found in the courts' criminal jurisdiction.Natural justice requirements could be met by ensuring a practitioner knew the caseagainst them and was able to respond to it, including by cross-examining otherwitnesses in reliance, amongst other things, on access to a complainant's medicalrecords.[30] In the Conduct Committee's submission, it had done sufficient to establish theunavailability of S. The Conduct Committee submitted that generally, where there15 At [109].16 At [106]–[108].17 At [108].18 At [107].were medical reasons, the Tribunal had not required the complainant to give evidence,as acknowledged by Wild J in P v Nursing Council of New Zealand.19 In such cases,the Tribunal's approach was to consider the evidence, and determine questions ofweight and reliability at the hearing. It was that consideration which enabled aprofessional's natural justice rights to be given effect to.[31] The Conduct Committee also submitted that the approach taken bythe High Court was inconsistent with the Tribunal's wide discretion to admit materialthat would not be admissible in a court of law. That broad discretion was consistentwith the Act's protective purpose and the promotion of that purpose by avoiding theneed for the Tribunal to take an overly technical approach to the admissibility ofevidence.[32] For W, counsel in effect endorsed the Judge's reasoning in respect ofthe Conduct Committee's appeal. On the cross-appeal, W argued that the combinationof the inadequacy of the reasons given as to why S should not give evidence in person,combined with the clear and objectively assessed difficulties with his credibility,meant that this Court should, on appeal, stay the proceedings. The Judge inthe High Court had been wrong not to do so. Responding, the Conduct Committeeendorsed the Judge's reasoning on that point. If the Tribunal had not undertaken therequired analysis, it was to be given the opportunity to do so consistent with thegeneral approach to judicial review.Analysis[33] The context for the arguments in this appeal is found in various provisions ofthe Act which deal with the Tribunal's procedures and, more particularly, its powersto receive evidence. Those provisions are found in sch 1, and provide:5 Procedure of Tribunal(1) Subject to this Act and to any regulations made under this Act,the Tribunal may—(a) regulate its procedure in any manner it thinks fit; and19 P v Nursing Council of New Zealand HC Wellington AP124/01, 27 August 2001 at [24].(3) The Tribunal must observe the rules of natural justice at each hearing.6 Evidence(1) The Tribunal may receive as evidence any statement, document,information, or matter that may in its opinion assist it to dealeffectively with the matters before it, whether or not that statement,document, information, or matter would be admissible in a court oflaw.(2) Subclause (1) is subject to clause 5(3).(3) The Tribunal may take evidence on oath, and for that purpose anymember or officer of the Tribunal may administer an oath.(4) The Tribunal may permit a person appearing as a witness before it togive evidence by tendering a written statement and, if the Tribunalthinks fit, verifying it by oath.(5) The Evidence Act 2006 applies to the Tribunal in the same manner asif the Tribunal were a court within the meaning of that Act.(6) Subclause (5) is subject to subclauses (1) to (3).[34] The respective positions of W and the Conduct Committee reflect differingcontentions as to the overall effect of those provisions. In particular, the ConductCommittee would give priority to the discretion the Tribunal has pursuant to cl 6(1).W's approach is based principally on cls 5(3), 6(2) and 6(5), which he says restrictthat discretion by reference both to the rules of natural justice and to the provisions ofthe Evidence Act, particularly as they relate here to hearsay evidence. Because ofthose competing positions, and what in our assessment is the overly broad view theTribunal took, as a matter of principle, of its cl 6(1) discretion, it is necessary to gointo some detail in this analysis.[35] The scheme of the relevant provisions from sch 1, as set out above, is readilyapparent. Both the Tribunal's power to regulate its procedure in any manner it thinksfit, cl 5(1)(a), and its discretion to receive any evidence that may assist it to dealeffectively with matters before it, whether or not admissible in a court of law, cl 6(1),are subject to the cl 5(3) requirement that it must observe the rules of natural justice.20[36] That scheme is entirely orthodox. As understood at common law, "naturaljustice" required a body or tribunal dealing with certain rights, interests andobligations to conduct a full and fair hearing in an impartial manner. At the same time,the precise content of a decision-maker's natural justice obligations will varydepending on the subject matter.21 Clause 5(3) recognises the significance of rights,interests and obligations of health practitioners subject to the Act's professionalcompetence and disciplinary regimes. Clause 6 acknowledges that, nevertheless, theTribunal is not a court of law and that its jurisdiction is a particular one: hence thediscretion in cl 6(1), notwithstanding the import of cl 6(5).[37] The Judge concluded that cl 6 required the Tribunal to assess the evidence'sadmissibility under the Evidence Act pursuant to cl 6(5) before considering whetherto exercise its discretion under cl 6(1).22 Before us, it was suggested for the ConductCommittee that this interpretation misunderstood the proper relationship between thetwo sub-clauses, and rather than forming the second step in the sequential processsuggested by the Judge, cl 6(1) provided the primary test for admissibility. We do notagree. As was pointed out for W, if cl 6(1) provides an open-ended power to receiveevidence without reference to the Evidence Act, this leaves cl 6(5) with almost no roleto play, which seems unlikely to have been Parliament's intention. The ConductCommittee also suggested that requiring evidence to be assessed against therequirements of the Evidence Act conflicts with the clear terms of cl 6(6), whichsubordinates cl 6(5) to cl 6(1). However, it is entirely consistent with cl 6(6) forevidence to pass through cl 6(5) and the Evidence Act before the Tribunal considerswhether to exercise its discretion under cl 6(1). In such a case cl 6(1) will ultimately20 Although the parties did not address the words "at each hearing" in cl 5(3), we note we do notconsider them to be an effective limit on that obligation. If, conceptually, it could be said theTribunal had "only" failed to observe natural justice at some point in its processes outside ahearing, it is difficult to foresee circumstances in which that failure would not also result in therelevant hearing at which the Tribunal's substantive decision was made being in breach of cl 5(3).21 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [3.3.27].22 See above at [25].prevail, as cl 6(6) contemplates. We do not read cl 6(6) as requiring cl 6(1) prevail atthe first step in the analysis.[38] Thus, to be properly exercised, the cl 6(1) discretion to admit evidence nototherwise admissible in a court of law in our view requires the Tribunal to make itsdiscretionary decision knowing, and having assessed the significance of, the fact thatsuch evidence is inadmissible under the Evidence Act. That exercise will give aprincipled basis to its decisions, providing the reasons the Judge said were required,when it admits evidence pursuant to that discretion. That discretion is, as the Tribunaldescribed it in Re Vatsyayann,23 a residual one and, as with all judicial andquasi-judicial discretions, to be exercised in a principled manner according to law.[39] Here the issue is the admissibility of hearsay evidence of a complainant on thebasis of his unavailability, where he is the only witness to the actions complained of.Accordingly, the assessments called for by the hearsay provisions of the Evidence Actwill be informed by the important natural justice right to challenge the truth of acomplainant's allegations by asking questions of the complainant in sworn testimony.[40] Section 18 of the Evidence Act addresses the admissibility of hearsay evidencein the following terms:18 General admissibility of hearsay(1) A hearsay statement is admissible in any proceeding if—(a) the circumstances relating to the statement provide reasonableassurance that the statement is reliable; and(b) either—(i) the maker of the statement is unavailable as a witness;or(ii) the Judge considers that undue expense or delaywould be caused if the maker of the statement wererequired to be a witness.23 Re Vatsyayann, above n 6, at [33].[41] Section 16(1) defines circumstances relating to the hearsay statement by aperson who is not a witness, as including:(a) the nature of the statement; and(b) the contents of the statement; and(c) the circumstances that relate to the making of the statement; and(d) any circumstances that relate to the veracity of the person; and(e) any circumstances that relate to the accuracy of the observation ofthe person[42] Section 16(2) provides that a person is unavailable as a witness in a proceedingif the person:(a) is dead; or(b) is outside New Zealand and it is not reasonably practicable for him orher to be a witness; or(c) is unfit to be a witness because of age or physical or mental condition;or(d) cannot with reasonable diligence be identified or found; or(e) is not compellable to give evidence.[43] The inclusive factors in s 16(1), as to nature and contents, reflect the need fora proper assessment of the seriousness of allegations contained in hearsay statements.Circumstances relating to the making of the statement emphasise the need for thestatement to have been obtained fairly. Circumstances that raise issues of veracity godirectly to credibility and reliability. As the Judge noted, the clinical file for S providedconsiderable evidence suggesting S had made false statements on various matters inthe past.24 In that context, it would also be relevant that S has never confirmed theaccuracy of the record of his statement, albeit noting he has declined to do so becauseof his wish to avoid causing trouble for W.25[44] The circumstances in which a person may be found to be unavailable alsoreinforce the strength of the proposition that a person charged should generally have24 High Court judgment, above n 2, at [23].25 Donnelly v R [2011] NZCA 660 at [69].the ability to challenge their accuser and other witnesses by questioning them.The first and last of those — death and lack of compellability — are reasonablyabsolute and require little if any assessment. The other three, however, require carefulassessment, and weighing of relevant factors, to determine whether a witness, here thecomplainant, can properly be said to be unavailable.26 In assessing availability andthe impact of a witness giving evidence, the availability of the various alternative waysthe Evidence Act provides for witnesses to give evidence will also be a relevantconsideration.[45] After assessing whether the evidence satisfied the s 18 criteria, the Tribunalthen needed to weigh any unfair prejudice occasioned by W's inability tocross-examine S. This inquiry must be undertaken even if the Tribunal is satisfiedabout the circumstances in which the statement was made and further satisfied onmedical evidence that S should be considered unavailable. In criminal proceedings,this is generally done by applying s 8, which specifically raises the right ofthe defendant to offer an effective defence:278 General exclusion(1) In any proceeding, the Judge must exclude evidence if its probativevalue is outweighed by the risk that the evidence will—(a) have an unfairly prejudicial effect on the proceeding; or(b) needlessly prolong the proceeding.(2) In determining whether the probative value of evidence is outweighedby the risk that the evidence will have an unfairly prejudicial effect ona criminal proceeding, the Judge must take into account the right ofthe defendant to offer an effective defence.26 See for instance R v Harmer, above n 12, at [15], where the High Court considered that a detectivewho was likely to suffer a relapse of his severe depressive disorder if he gave evidence did notqualify as "unfit to attend"; and R v Alovili, above n 12, at [26], where the High Courtemphasised that there must be a high threshold before it can be said that a person is unavailableas a witness because of a mental condition.27 See, for example, Anderson v R [2020] NZCA 106 at [81]–[93]; see also Re Vatsyayann, aboven 6, at [26]–[32]. It has also been suggested that similar analysis can take place as a considerationunder s 18: Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis(4th ed, Thomson Reuters, Wellington, 2018) at [EV16.03.04]; compare at [EV8.06(1)(e)] andAdams on Criminal Law (online ed, Thomson Reuters) at [EA18.02(1)]. What section does thework is more a matter of form than substance and should not affect the ultimate outcome.In cases such as the present, where the hearsay statement is critical evidence to aserious charge, the potential for unfair prejudice may be assessed as relativelysignificant.[46] If the criteria for admissibility under the Evidence Act are not met, the Tribunalmay go on to consider the discretion it has under cl 6(1). But that discretion is subjectto the hard limit, as the Judge put it,28 of the cl 5(3) — natural justice — requirement.That assessment will be, of necessity, fact-specific. It must take into account theseriousness of the allegation. We observe that, where in circumstances such as thesehearsay statements would be inadmissible under the Evidence Act, there may be littleroom to admit them under the cl 6(1) residual discretion. That conclusion followsfrom the close link between the natural justice right to challenge one's accusers andthe need to exclude unfairly prejudicial evidence as expressed in s 8(1) and (2).In other circumstances, the discretion may be of more significance for the Tribunal.[47] In summary, the overall effect of cls 5 and 6 of sch 1 of the Act is as follows:(a) That evidence is inadmissible under the Evidence Act does not in andof itself make it inadmissible before the Tribunal.(b) Notwithstanding, the Tribunal must consider whether evidence wouldbe admissible under the Evidence Act before considering whether toexercise its discretion under cl 6(1).(c) That general admissibility standard is broad and reflects the principalpurpose of the Act, of protecting the health and safety of members ofthe public by providing for mechanisms to ensure that healthpractitioners are competent and fit to practise their professions.29(d) The discretion reflected in that standard is limited by what the Judgereferred to as the "hard limit" found in cl 5(3). Moreover, for thatdiscretion to be properly exercised, the Tribunal needs to be aware of,28 High Court judgment, above n 2, at [107].29 Health Practitioners Competence Assurance Act, s 3(1).and assess the significance of, the reasons cl 5(3) applies. Hence theimportance of a question as to the admissibility of a hearsay statementbeing assessed by reference to the relevant provisions of the EvidenceAct, informed by the natural justice interests those provisions reflect,and in the specific context in which the issue arises.[48] Finally and for completeness' sake we observe that, other than on admissibilityissues, cl 6(5) applies the Evidence Act to the Tribunal. Clause 6(5) is, therefore,a specific limit on the Tribunal's cl 5(1) power to regulate its procedure and publishrules of procedure. More generally, and for example, s 84 of the Evidence Act appliesto the Tribunal, as do the "[a]lternative ways of giving evidence" provisions found inthe Evidence Act.30 As noted, those provisions are relevant here, as they providealternative ways for giving evidence and reducing adverse impacts on a witness ofdoing so.[49] We are satisfied on the basis of that analysis the appeal cannot succeed.The Tribunal, in the decision under review, had an erroneous understanding of theambit of its cl 6(1) discretion and also of the applicability to it of the Evidence Act. Inits decision, the Tribunal gave little, if any, consideration to the requirements found ins 18 of the Evidence Act for the admissibility of hearsay statements and the moregeneral issue raised by s 8. It found that S was unavailable without consideringwhether he might give evidence in an alternative way. In doing so, it failed to establisha proper basis for the exercise of its discretion to admit evidence which may well beinadmissible under the Evidence Act. As the Judge found, it failed to give sufficientattention to W's natural justice right to challenge the truth of S's allegations byquestioning S.[50] We also agree with the Judge's decision to remit the matter to the Tribunal forreconsideration and decision on a proper basis, particularly as these are judicial reviewproceedings. Where a decision-maker has erred in the way the Tribunal did,the generally appropriate response is to provide for it to make its decision afresh, on a30 Evidence Act, pt 3, subpt 5.correct basis. The seriousness of the present allegations is such that it would be wrongto bring the proceeding before the Tribunal to a halt at this point.Result[51] The Conduct Committee's appeal is dismissed.[52] W's cross-appeal is dismissed.[53] No questions of costs arise.Solicitors:Claro Law, Wellington for Second Respondent