GEARY V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2009-485-002641

GEARY V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2009-485-002641 30 September 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-002641IN THE MATTER OF An appeal under s 106 Health Practitioners Competence Assurance Act 2003 BETWEEN IAN RUSSELL GEARY Appellant AND PROFESSIONAL CONDUCT COMMITTEE Respondent Hearing: 29 September 2010 Counsel: A Beck for Appellant P J Radich and L I Van Dam for Respondent Judgment: 30 September 2010JUDGMENT OF WILD J: APPLICATION FOR LEAVE TO APPEAL[1] By application filed on 12 August Mr Geary seeks leave to appeal my judgment of 22 July. In that judgment I dismissed an appeal by Mr Geary against two decisions of the Health Practitioners Disciplinary Tribunal. In the first the Tribunal found Mr Geary guilty of professional misconduct and conduct unbecoming a psychiatrist. In the second the Tribunal imposed various penalties including cancelling Mr Geary's registration as a psychologist. [2] Section 113 Health Practitioners Competence Assurance Act 2003 governs Mr Geary's leave application. That section imports the requirements of s 144 Summary Proceedings Act 1957. Section 144(2) gives this Court a discretion to grant Mr Geary leave if of the opinion that:... the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[3] Mr Beck submitted s 144(2) gives the Court an "extremely wide" power, and that "the yardstick is whether the particular question of law ought to be submitted to the Court of Appeal". That somewhat minimalist statement of the position is correct. But answering Mr Beck's question involves the Court being satisfied that:• There is a question of law.• It is a question which, by reason of its general and public importance, or for any other reason, ought to be submitted to the Court of Appeal.• It ought to be so submitted. [4] I draw that breakdown of the requirements from the Court of Appeal's decision in R v Slater [1997] 1 NZLR 211 at 215. I note the Court added that such a breakdown was "probably neither necessary nor desirable". In Slater, also at 215, the Court of Appeal said this:Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.[5] Mr Beck listed five questions of law Mr Geary wants to take on appeal. I intend working through each.Finding evidence admissible that did not satisfy the requirements of the Evidence Act 2006[6] This admissibility point stems from [44] and [57] of my judgment. In the first paragraph I upheld the Tribunal's admissibility ruling that evidence of Mr Geary's subsequent disclosures to the ACC was relevant in determining his primarymotivation for his earlier disclosures to the Police. In the latter I referred to a decision expressed in June 2005 by the Psychologists Board about Mr Geary. Mr Beck will be inviting the Court of Appeal to rule that that evidence and opinion was in admissible, in terms of sections 23 and 50 of the Evidence Act 2006 respectively. [7] I favour the view advanced by Mr Radich that what Mr Geary is seeking here is a second bite at a "factual cherry". He does not contend that there was no probative evidence for the relevant findings of the Tribunal that I upheld. Unless there was simply no evidentiary foundation for those findings, Mr Geary cannot tenably argue that a question of law arises, in that findings have been made against him when there is no evidence to support them. Mr Radich referred to the classic authority of Edwards v Bairstow [1956] AC 14 at 35. [8] Even if there is some legitimate question of law here, I do not consider it is one warranting a second appeal, with all the attendant expense and delay. It just does not have the ring of a point sufficiently important to warrant that.The conclusion that Mr Geary's conduct was unjustified without addressing his contention that disclosure was made for the conduct of proceedings before a Court or Tribunal[9] This is not so much a question of law, as a complaint that I failed to deal with Mr Geary's assertion that he made his disclosures to the Police and to Y for the purpose of legal proceedings, namely his appeal against the decisions of the Psychologists Board given in May and June 2005. Before me, Mr Beck argued first that legal professional privilege attached to those disclosures. Alternatively, he argued that they were made for the purpose of legal proceedings, and were thus justified. I do not accept that I failed to deal with the latter argument. Although I may be guilty of conflating Mr Beck's two points in my judgment, I squarely rejected both. I did that because the evidence pointed unerringly to Mr Geary making his disclosures to the Police and to Y with the purpose of having X investigated and prosecuted for fraud and perjury. There was simply nothing to indicate that he had made his disclosures for the purposes of his appeal, indeed quite the opposite as I pointed out in [30].[10] I do not see any question of law here, let alone one justifying a further appeal. It is just that I squarely rejected Mr Beck's contention, because it had no factual basis.The taking account of conduct that was not the subject of charges laid against the appellant[11] The charges against Mr Geary related to disclosures he had made in May 2005, February 2006 and March 2006. Mr Beck's point is that my judgment, for example in [45] and [66], refers to the period May 2005-March 2006. The extent of any error here is to refer to the start and the end of the period in which the relevant disclosures were made, rather than to the specific months in that period in which they were made. [12] Mr Beck sought to give this point some force by referring to the decision of the Privy Council in Felix v General Dental Council [1960] AC 704 at 721. There, the Privy Council was critical of a disciplinary committee for not confining its consideration to matters charged. I do not consider I made that error. If I did, it is not an error of law of the type contemplated by s 144(2).The assessing of sanctions with regard to other cases against psychologists rather than health practitioners generally The treatment of the imposition of sanctions under the Health Practitioners Competence Assurance Act 2003 as punishment for offending[13] The nub of these points was that [70]-[78] of my judgment wrongly approached penalty as if Mr Geary had committed criminal offences, rather than with a view to protecting the public as users of psychological services, and overlooked the imperative of achieving consistency in penalties between different health disciplines. For example, as to consistency, Mr Beck contended that my judgment failed to identify where, on the spectrum of professional conduct, Mr Geary's behaviour had fallen, as a basis for upholding the Tribunal's decision to cancel his registration.[14] I do not accept these alleged errors. In considering penalty, it is possible nowadays to consider other decisions almost ad infinitum. Of those referred to me, I selected two that I thought were particularly pertinent and helpful in dealing with Mr Geary's appeal. I cited passages from the judgments in each decision. As Mr Radich pointed out, Randerson J's judgment in Patel v The Dentists Disciplinary Tribunal HC Auckland AP77/02, 8 October 2002, in the passage I cited, refers expressly to the need, in imposing penalty, to maintain reasonable consistency with other cases. And Gendall J's decision in Professional Conduct Committee v MartinHC Wellington, CIV 2006-485-001461, 27 February 2007, in the passage I cited, poses the question "What orders will protect the public ... ?". Mr Beck contended I had erred in not referring to disciplines other than psychology. However, Patelinvolved a dentist's appeal, and Martin cancellation of the registration of a nurse. [15] Mr Beck complained that I had not placed Mr Geary's case on a spectrum of conduct. That may be true, but as Mr Radich pointed out, there does not seem to be any other case where a medical professional has disclosed a patient's confidential information in circumstances that can be compared in any way with those here. Consistent with my not accepting these two alleged errors, I do not accept that they warrant a second appeal. [16] In my view, none of the five suggested questions of law warrants leave for a second appeal. Nor do I think the points warrant the grant of leave when viewed in combination. I regard them as adding to something well short of the threshold that s 144(2) requires Mr Geary to meet. [17] I therefore decline Mr Geary's application for leave to appeal to the Court of Appeal. [18] I wish to end this judgment with some comments that I direct to Mr Geary. I apologise for any element of repetition here, but it is Mr Geary's desire to take this matter further that prompts me to make these comments. [19] In 2001-2002 Mr Geary counselled X. The following year she complained about him to the Psychologists Board. In decisions in March and June 2005 theBoard found Mr Geary guilty of professional misconduct. In the meantime, Mr Geary had started disclosing, to the Police and later to X, confidential information about X. In July 2005 Mr Geary appealed to the High Court. His appeal was allowed in part, but I suggest substantially failed. The judgment is that of Ronald Young J given on 28 May 2007. That is the first time this saga came before this Court. [20] Meanwhile, in November 2006, X had complained to the Board about Mr Geary's disclosures to the Police and to Y. In November 2007 Mr Geary sought judicial review of the Board's decision to refer X's complaints to the Professional Conduct Committee. I dismissed Mr Geary's application for judicial review in a judgment I gave on 8 December 2009. That was the second time this saga came before this Court. [21] Meanwhile, in February 2008, the Professional Conduct Committee had laid charges against Mr Geary. Mr Geary again sought judicial review, this time challenging the Committee's jurisdiction to charge him. Clifford J dismissed that application in his judgment of 28 November 2008. So, for a third time, this saga came before this Court. [22] Mr Geary was not happy with Clifford J's judgment and appealed it to the Court of Appeal, which dismissed his appeal. [23] The Tribunal's ensuing decisions, first as to liability and then as to penalty, were the subject of my judgment from which Mr Geary now seeks leave to appeal. In that judgment I dismissed Mr Geary's appeal – the fourth time this saga has come before this Court. Now Mr Geary is seeking to take the matter again to the Court of Appeal. [24] Every New Zealander is entitled to enlist the Court's help in ensuring that decisions of Tribunals and Courts subject to appeal are procedurally and substantively correct. However, as one of the Judges who has been involved – now twice – in this saga of litigation spanning the last five years, I have a growing sensethat Mr Geary has lost touch with what is required of a practising psychologist in 2010, and with the standards and ethics of his profession. [25] I trust it is evident to Mr Geary from [38] of my 22 July judgment that I despaired of his disclosures, in particular to Y. I do not resile from anything I said in that paragraph. Indeed, the application I have just dismissed suggests to me that Mr Geary still fails to grasp the gravity and completely unacceptable nature of what he did. [26] I urge Mr Geary to take a good step backwards and to take stock of the whole situation.Solicitors: Gault Mitchell, Wellington for Appellant Minter Ellison Rudd Watts, Wellington for Respondent