N v PROFESSIONAL CONDUCT COMMITTEE OF MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 984

N v PROFESSIONAL CONDUCT COMMITTEE OF MEDICAL COUNCIL OF NEW ZEALAND [2017] NZHC 984 [15 May 2017]NOTE: PUBLICATION OF NAME AND IDENTITY PARTICULARS OFDR N AND OTHER PERSONS PROHIBITED PURSUANT TO S 95 OF THEHEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2013-485-718[2017] NZHC 984BETWEEN DR NAppellantAND PROFESSIONAL CONDUCTCOMMITTEE OF MEDICAL COUNCILOF NEW ZEALANDRespondentOn the papersCounsel: M McClelland QC and I Tokmadzic for the AppellantJ Hughson for the Respondent (abides)B Hawes for the applicant seeking access to court fileJudgment: 15 May 2017JUDGMENT OF MALLON JIntroduction[1] Raymond Donnelly & Co, the Crown solicitors in Christchurch, on behalf of the New Zealand Police, seek access to this file. The purpose of the requested access is to obtain the name of Dr N who has permanent name suppression. The police seek access for the purposes of an investigation. The police investigation arises out of acomplaint which has been made to them by Right to Life New Zealand Inc ("Right to Life").Background[2] In early 2013 Dr N was found guilty by the New Zealand Health PractitionersDisciplinary Tribunal ("the Tribunal") of professional misconduct.1 This related to her conduct in prescribing or dispensing misoprostol (Cytotec) to four patients. Misoprostol is commonly used for medical abortions carried out in a licensed abortion facility. There are prescribed procedures for carrying out abortions in New Zealand.2 The charge relating to three of the patients included Dr N failing to comply with these procedures. The charge relating to the fourth patient, who received misoprostol for a different purpose, concerned inadequate documentation.[3] Dr N was suspended for six months from 27 May 2013, conditions of practise were imposed for a period of three years from the resumption of practise, a recommendation was made to the Medical Council that Dr N be prohibited from prescribing or supplying misoprostol for a maximum of three years from the resumption of practise, and Dr N was censured and ordered to pay costs.[4] The four patients had not complained about Dr N's conduct. The misconductcharge arose as a result of a complaint by a third party. When the matter came before the Tribunal it became apparent that the patients had not been informed that their medical records were being reviewed for the purposes of considering the charge. Contact was made with each of them to advise them of the position and to assure them of confidentiality. The Tribunal granted them permanent name suppression recognising the highly private and sensitive nature of their consultations with Dr N. The Tribunal also granted permanent name suppression to the organisations at which Dr N worked and a nurse who worked at one of the organisations.[5] The Tribunal declined to grant Dr N permanent name suppression. In a decision delivered on 16 December 2013 I allowed Dr N's appeal and granted herpermanent name suppression.3 I did so because publication of her name could identify the patients who had been specifically assured of their confidentiality; and it1 Under the Health Practitioners Competence Assurance Act 2003, s 100(1)(a) and (b).2 Contraception, Sterilisation, and Abortion Act 1977, ss 29, 32 and 33.3 N v A Professional Conduct Committee of Medical Council of New Zealand [2013] NZHC 3405, [2014] NZAR 350.was also likely to seriously undermine the Tribunal's suppression of the identity ofthe organisations and the nurse.[6] An abortion which is carried out "unlawfully" (as defined) is an offenceunder the Crimes Act 1961.4 The Professional Conduct Committee, which investigates a complaint against a doctor, may recommend to the Medical Council of New Zealand that the matter be referred to the police for investigation. It did not make any such recommendation in relation to Dr N.[7] Right to Life is a group which considers "unborn children are endowed by their Creator with an unalienable right to life" and government funding of abortion "makes us all as taxpayers complicit in the murder of our unborn." In 2013 or 2014it wrote to the Medical Council and the Abortion Supervisory Committee asking if they were intending to lay a complaint with the police. The Medical Council and Abortion Supervisory Committee advised Right to Life that they would not be doing so.5[8] On 29 August 2014 Right to Life wrote a letter of complaint to the police about Dr N. The complaint alleged Dr N had committed an offence under s 183 of the Crimes Act 1961. Right to Life referred to its inquiry with the Medical Council and the Abortion Supervisory Committee. It asked the police to give consideration to laying charges against Dr N.The request[9] Raymond Donnelly & Co's request for access was made by letter to the HighCourt dated 7 December 2016. Access was sought under rule 3.13 of the High Court Rules 2016. The specific information sought was the full name of Dr N. The letter advised of the complaint from Right to Life. It advised that the reason for the delay between the complaint made by Right to Life and the request to the Court was that the police had taken time to review the matter. The letter submitted that the access would not breach the suppression order as there would be no "publication" (referring4 Sections 183 and 187A.5 This inquiry and the responses are referred to in Right to Life's letter to the police. I do not havecopies of the inquiry and the responses.to the Court of Appeal's decision in ASG v Hayne).6 The letter also referred to s 209 of the Criminal Procedure Act 2011 permitting publication of suppressed details to police employees who require the information for the purpose of official duties. The letter noted that the section was not of direct application, but it might inform the decision.The opposition[10] The application was referred to Dr N's counsel for comment. Through anoversight, the request was not also referred to the Professional Complaints Committee at the same time. That was subsequently rectified and on 30 April 2017 the Court was informed that the Professional Complaints Committee would abide theCourt's decision.[11] Counsel for Dr N filed a memorandum setting out the grounds on which it opposed the request. Dr N's position is that the public interest is not served bygranting the access sought. The reasons for this position are as follows:(a) advising the police of Dr N's name increases the risk that the patients might be identified, when the patients had expressed concerns about being identified and had been assured of their confidentiality, and they had not made, and did not wish to make, a complaint regarding Dr N;(b) the propriety of a police investigation has already been considered, and decided against, by the relevant professional regulatory bodies, and it was not appropriate to give any weight to the second-guessing of this professional assessment by the lay, special interest group, Right to Life;(c) the police had been able to review the matter for more than two years without knowing Dr N's identity; and6 ASG v Hayne [2016] NZCA 203, [2016] 3 NZLR 289 at [43]. This decision has since been upheld by the Supreme Court: ASB V Hayne [2017] NZSC 59 at [79]-[80].(d) granting access would breach the suppression order granted in favour of Dr N, ASG v Hayne7 was distinguishable and s 209 of the Criminal Procedure Act was inapplicable because it was concerned with name suppression in criminal proceedings, which this proceeding was not.My assessment[12] In determining whether to grant access to court documents the Court "must consider the nature of, and the reasons for, the application or request". It must also take into account the following matters where they are relevant:8(a) the orderly and fair administration of justice:(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:(d) the freedom to seek, receive, and impart information:(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:(f) any other matter that the Judge thinks just.[13] Rule 3.12 provides:(1) Any right or permission conferred or given by these rules to access a document, court file, or any part of the formal court record is subject to—(a) any enactment, court order, or direction limiting or prohibiting access or publication; and[14] The requested access in this case does not engage the principle of open justice. The access is not sought to report or comment on a court hearing or decision. Nor is access sought to further the freedom to seek, receive and impart information. The other factors are, however, potentially relevant.7 ASG v Hayne above n 6.8 High Court Rules 2016, r 3.16[15] On the one hand it might be said that the access should be granted becausethe police seek Dr N's name in connection with a police investigation. To that extentit advances the orderly and fair administration of justice.[16] On the other hand the protection of confidentiality and privacy interests point against permitting access. The patients cooperated with the disciplinary process on the basis of an assurance of confidentiality. It is difficult to see how a police investigation could progress, without the police having specific information about and from those patients.[17] Similarly the restrictions in rule 3.12 also point against permitting access.The Court has made a permanent order "prohibiting the publication" of Dr N. TheTribunal has made permanent orders "prohibiting the publication" of the patients,organisations and a nurse.9 These orders recognise the highly private and sensitive information involved.[18] Balancing these matters, I consider that access should not be permitted unless there is a proper interest of a kind sufficient to override the confidentiality and privacy interests.10 On the information before me I am not persuaded at this stage that there is. The complaint from Right to Life does not provide any basis for its assertion that Dr N's conduct is an offence under the Crimes Act.11 Nor have the police provided any information to the Court to suggest there is any basis to suspect an offence under the Crimes Act. It is unclear what stage the police investigation has reached, why knowledge of Dr N's identity is necessary to continue theinvestigation, and specifically what has prompted the request to the Court for Dr N'sidentity at this time – more than two years after receiving the Right to Life complaint and some four years after the matter was considered by the Tribunal and after Dr N has completed the penalty the Tribunal imposed on her.9 These orders were made under s 95(2)(d) of the Health Practitioners Competence Assurance Act 2003.10 The Supreme Court's analysis in ASG v Hayne above n 6 concerning s 200 of the Criminal Procedure Act 2011 would appear to apply to a prohibition on publication made under s 95(2)(d) of the Health Practitioners Competence Assurance Act 2003.11 As I understand it, failures to comply with the Contraception, Sterilisation, and Abortion Act 1977 procedures in prescribing misoprostol do not necessarily mean the prescription is"unlawful" under the Crimes Act 1961.[19] It is unclear if the police have contacted the Medical Council or the Abortion Supervisory Committee for their views on the complaint. The police also appear not to have contacted these bodies to explain why they consider they need to know DrN's identity. The Professional Conduct Committee, the Medical Council and theAbortion Supervisory Committee, apparently all formed the view that the matter does not need to be referred to the police. If they have not considered it necessary that the police investigate the matter, it is unclear why it is necessary for the police to investigate the matter on the basis of the unsubstantiated Right to Life complaint.Result[20] Accordingly the request is declined.Mallon J