JOHN MARKS V THE DIRECTOR OF HEALTH AND DISABILITY PROCEEDINGS HC WN CIV 2006-485-864

JOHN MARKS V THE DIRECTOR OF HEALTH AND DISABILITY PROCEEDINGS HC WN CIV 2006- 485-864 28 January 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-864UNDER the Judicature Amendment Act 1972 IN THE MATTER OF a decision of the Human Rights Review Tribunal dated 23 December 2005 BETWEEN JOHN MARKS Appellant AND THE DIRECTOR OF HEALTH AND DISABILITY PROCEEDINGS Respondent Hearing: 17 December 2007 Appearances: C Hodson QC for the Appellant K McDonald QC and J Hughson for the Respondent Judgment: 28 January 2008JUDGMENT OF MILLER J[1] SW died on 15 October 1999 of injuries that he inflicted on himself in an attempt to commit suicide. The appellant, a consultant psychiatrist employed by the relevant District Health Board, had been treating him for eight months previously. [2] SW's parents were heavily involved in his mental health care and attended at least one consultation with Dr Marks. On a complaint by them, the Medical Practitioners Disciplinary Tribunal found Dr Marks guilty of professional misconduct in his care of SW. It made various orders imposing penalties and restrictions on his practice. The District Court substantially dismissed an appeal against those findings. Dr Marks accepts for the purpose of this application that the Director will be able to show that he breached the Code of Health and Disability Services Consumers' Rights when providing health services to SW.[3] On behalf of SW's parents, the Director of Health and Disability Proceedings brought in the Human Rights Review Tribunal a claim under the Health and Disability Commissioner Act 1994. The claim seeks a declaration, and damages in the sum of $40,000 on account of humiliation, loss of dignity and injury to feelings suffered by them. [4] Dr Marks applied to the Tribunal to strike out the damages claim, contending that it had no jurisdiction to award damages payable to SW's parents, who were not consumers of his health services. The Tribunal dismissed the strikeout application. This application for judicial review is brought in respect of that decision. [5] The issue is whether SW's parents can be "aggrieved persons" in whose favour damages may be awarded under s57 of the Health and Disability Commissioner Act 1994.The claim[6] The first amended Statement of Claim pleads that the Director acts for and on behalf of SW's parents and alleges that they are deemed to be aggrieved persons for the purposes of the Act. It is further pleaded that SW was a health consumer for the purposes of the Act. (I record at this point that the claim has proceeded on the basis that SW's parents were not relevantly health consumers of Doctor Marks' services.) [7] The claim recites SW's medical history, including a series of suicide attempts and hospital admissions. It pleads various deficiencies in Dr Marks' treatment, including failure to carry out full clinical assessments and undertake risk assessments on several occasions, and says that Dr Marks thereby breached SW's right under the Code to have services provided with reasonable skill and care or in accordance with professional and ethical standards. [8] The claim pleads that these breaches of SW's rights under the Code caused SW's parents to suffer humiliation and/or loss of dignity and/or injury to their feelings. It is said that they have suffered grief and live with the uncertainty of not knowing whether he would have lived, had he received adequate care.The Human Rights Review Tribunal decision refusing strikeout[9] The Tribunal reviewed the pleadings and legislation, and considered Mr Hodson's arguments that SW's parents were not consumers and so could not be aggrieved persons. It concluded, however, that Parliament had used the undefined term "aggrieved person" rather than "consumer", yet took some care to define what "health consumer" means. It referred to dictionary definitions of "aggrieved" and concluded that in ordinary usage "aggrieved person" conveys the idea of a person who has been adversely affected by the conduct of another. It considered that a broader interpretation was also consistent with the object of the legislation, and held that in the end the question who is an aggrieved person is one of fact for the Tribunal.The judicial review application[10] I need not trace the convoluted path by which the issue found its way to this Court. I simply refer to the judgment of Clifford J of 4 April 2007 in which he held that judicial review is appropriate in the circumstances of this case, notwithstanding the unavailability of a right of appeal from interlocutory decisions of the Tribunal. [11] The application for review pleads that the Tribunal erred in law by holding that SW's parents are or can be aggrieved persons in respect of whom a claim for a declaration and damages can be made.The legislation[12] Section 6 of the Health and Disability Commissioner Act provides that the purpose of the Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights. The term "health consumer" is defined to include any person on or in respect of whom any health care procedure is carried out.[13] A Code of Health and Disability Services Consumers' Rights has been established under the Act, which provides that it shall contain provisions relating to various matters, including the rights of health consumers and the duties and obligations of health care providers, which include duties to provide services of an appropriate standard. It defines "consumer" to mean a health consumer or disability services consumer. The Code provides that every consumer has the rights in the Code, which include the right to have services provided with reasonable care and skill and in a manner consistent with his or her needs. For certain purposes which are not presently relevant, a consumer includes a person entitled to give consent on behalf of the consumer.[14] Part IV of the Act deals with complaints and investigations. There is a general right to make complaints in s31, which provides that "any person may complain", alleging that any action of a health care provider is or appears to breach the Code. It appears from s31(1) and (2) that the complaint must concern conduct that affected a "health consumer". [15] A complaint is made to the Health and Disability Commissioner, who may investigate it, take no action, call a conference, or refer the complaint to other bodies. Section 34(1)(b) provides that the Commissioner may refer the complaint to the Accident Compensation Corporation if it appears that the "aggrieved person" may be entitled to cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001. [16] Section 41 provides that before proceeding to investigate a matter the Commissioner must by written notice inform the complainant, if any, the health care provider to whom the investigation relates, and "any person alleged to be aggrieved (if not the complainant)" of the investigation. When the investigation is completed the Commissioner must advise "any complainant whose complaint led to the investigation", any person alleged to be aggrieved (if not the complainant), and the health care provider of its results: s43. [17] If the Commissioner concludes that any action that was the subject of the investigation breached the Code, the Commissioner may, among other things, referthe health care provider to the Director of Proceedings for the purpose of deciding whether certain actions should be taken: s45(2)(f). They are involvement by the Director in disciplinary proceedings under s47, the institution of disciplinary proceedings, and the institution of proceedings before the Human Rights Review Tribunal under s50. Section 50 provides:50 Proceedings before Human Rights Review Tribunal(1) This section applies to any health care provider or disability services provider in respect of whom or of which an investigation has been conducted under this Part of this Act in relation to any action alleged to be in breach of the Code. (2) Subject to sections [44(1)] and 53 of this Act, civil proceedings before the [Human Rights] Review Tribunal shall lie at the suit of the Director of Proceedings against any person to whom this section applies for a breach, by that person, of the Code. (3) The Director of Proceedings may, under subsection (2) of this section, bring proceedings on behalf of a class of persons, and may seek on behalf of persons who belong to the class any of the remedies described in section 54 of this Act, where the Director of Proceedings considers that a person to whom this section applies is carrying on a practice which affects that class and which is in breach of the Code. (4) Where proceedings are commenced by the Director of Proceedings under subsection (2) of this section, neither the complainant (if any) nor the aggrieved person (if not the complainant) shall be an original party to, or, unless the Tribunal otherwise orders, join or be joined in, any such proceedings.[18] Where the Commissioner finds a breach of the Code but fails to refer the health provider to the Director of Proceedings, or the Director of Proceedings declines or fails to take proceedings, the aggrieved person, whether personally or by anyone authorised to act on his or her behalf, may bring proceedings before the Human Rights Review Tribunal: s51. In any such proceeding, the Director of Proceedings or the aggrieved person may seek such of the remedies described in s54 as he or she thinks fit: s52. They include declarations, orders in the nature of injunction, damages in accordance with s57, and an order that the defendant perform any acts specified in the order "with a view to redressing any loss or damage suffered by the aggrieved person as a result of the breach": s54(1). Section 54(4) provides that it shall not be a defence to such proceedings if the breach was unintentional or without negligence on the part of the defendant, but the Tribunalshall take the defendant's conduct into account in deciding what, if any, remedy to grant. [19] There is a prohibition on double recovery in s52(2), which provides that if any person has suffered personal injury within the meaning of the Injury Prevention, Rehabilitation, and Compensation Act that is covered by that Act, no damages arising directly or indirectly out of that personal injury may be awarded to or for the benefit of that person in proceedings before the Tribunal. [20] As mentioned, s57 deals with damages. It provides:57 Damages(1) Subject to section 52(2) of this Act, in any proceedings under section 50 or section 51 of this Act, the Tribunal may award damages against the defendant for a breach of any of the provisions of the Code in respect of any one or more of the following: (a) Pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved person for the purpose of, the transaction or activity out of which the breach arose: (b) Loss of any benefit, whether or not of a monetary kind, which the aggrieved person might reasonably have been expected to obtain but for the breach: (c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved person: (d) Any action of the defendant that was in flagrant disregard of the rights of the aggrieved person. (2) Subject to subsections (3) to (5) of this section, the Commissioner shall pay damages recovered by the Director of Proceedings under this section to the aggrieved person on whose behalf the proceedings were brought. (3) If the aggrieved person is [a minor who is not married or in a civil union], the Commissioner may, in his or her discretion, pay the damages to [Public Trust] or to any person or trustee corporation acting as the manager of any property of that person. (4) If the aggrieved person is a mentally disordered person within the meaning of section 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 whose property is not being managed under the Protection of Personal and Property Rights Act 1988, the Commissioner may, in his or her discretion, pay the damages to [Public Trust]. (5) If the aggrieved person is a person whose property is being managed under the Protection of Personal and Property Rights Act 1988, theCommissioner shall ascertain whether the terms of the property order cover management of money received as damages and,— (a) If damages fall within the terms of the property order, the Commissioner shall pay the damages to the person or trustee corporation acting as the property manager; or (b) If damages do not fall within the terms of the property order, the Commissioner may, in his or her discretion, pay the damages to [Public Trust]. (6) Where money is paid to [Public Trust] under subsection (3) or subsection (4) or subsection (5) of this section,— (a) section 12 of the Minors' Contracts Act 1969 shall apply in the case of [a minor who is not married or in a civil union]; and (b) sections 108D, 108F, and 108G of the Protection of Personal and Property Rights Act 1988 apply, with any necessary modifications, in the case of a person referred to in subsection (4) or subsection (5)(b) of this section; and (c) section 108E of the Protection of Personal and Property Rights Act 1988 applies, with any necessary modifications, in the case of a person referred to in subsection (5)(a) of this section.[21] Certain provisions of the Human Rights Act 1993 apply in respect of proceedings under ss50 or 51 of the Health and Disability Commissioner Act. They include the provisions establishing the Human Rights Review Tribunal and its procedures. The latter include s108, which provides that any person who is a party to proceedings before the Tribunal, and any person who satisfies the Tribunal that he or she has an interest in the proceedings greater than the public generally, may appear and call evidence on any matter that should be taken into account in determining the proceedings. [22] It will be seen from this survey of the legislation that the Act defines the term "health consumer", albeit in a non-exclusive manner, and provides that any person may complain about a breach of the Code. The term "aggrieved person" is not defined. [23] It will also be seen that a claim for damages or other relief does not require proof of intentional harm or negligence, although those properties may be taken into account when deciding what, if any, remedy to grant. And, as Ms McDonald accepted, damages may be awarded only if the Director establishes that losses of thekinds specified in s57 were caused by the defendant's breach of the Code. The Act uses the term "damages" rather than "compensation", presumably because an award under s57(1)(d) is in the nature of exemplary damages.The authorities[24] The term "aggrieved person" was most recently considered in Attorney- General v The Human Rights Review Tribunal and Child Poverty Action Group Incorporated (2006) 18 PRNZ 295. There the Child Poverty Action Group complained that legislation conferring dependant child tax credits discriminates, on employment and family status grounds, against those on income-tested benefits, who are ineligible for the credits. It sought a declaration to that effect from the Human Rights Review Tribunal. The Attorney-General resisted the application, arguing that the Group lacked standing to bring proceedings before the Tribunal because it was not an alleged victim of discrimination, nor did it sue on behalf of any such person. [25] I upheld the Child Poverty Action Group's entitlement to bring proceedings. The decision focused on the meaning of "complainant" in the Human Rights Act 1993. I found, however, that under that Act proceedings may be brought by the complainant or the person aggrieved (if not the complainant), and that any person might first complain and then sue. [26] In New Zealand Freedom from Discrimination Group v New Zealand Grand Lodge of Freemasons [1980] 2 NZAR 401 the Equal Opportunities Tribunal considered a complaint that Freemasons discriminated against others in relation to employment, and by espousing the cause of fellow Masons when called upon to do so. The respondent contended that there was no jurisdiction to consider such a claim under the Human Rights Commission Act in that the plaintiff was not an aggrieved person as required by s38 of that Act. The Tribunal disagreed. It held that an aggrieved person must be one against whom a breach of the provisions of Part 2 of the Act had been committed, or alternatively a person identified with or in some way connected with those who suffer from the discriminatory practice (p405).[27] The Tribunal was careful to record that it did not mean to cover every type of case. Ultimately the question was one of fact. The term "the aggrieved person" should not be interpreted in an unduly restrictive manner, but it should not be interpreted so that it really means no more than "any person". [28] The Complaints Review Tribunal affirmed this construction of "aggrieved person" some sixteen years later in Amaltal Fishing Co Ltd v Nelson Polytechnic[1996] NZAR 97. It concerned a complaint that the Nelson Polytechnic had adopted a practice of reserving for Maori or Pacific Islanders a number of the limited places available in a fishing cadet course. The applicant was a fishing company, and its evidence was that it sponsored suitable cadets wishing to take up positions in the fishing industry. The Tribunal accepted that Amaltal was an aggrieved person within the meaning of that term as used in s17 of the Race Relations Act, s38 of the Human Rights Commission Act, and s83 of the Human Rights Act. [29] In Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA92/02) the Court did not expressly discuss the term "aggrieved person". But the decision is consistent with the construction of "aggrieved person" established in the Freemasonscase and affirmed in Amaltal. Harrild concerned proceedings brought by the Director on behalf of the parents of a stillborn child. It was alleged that a medical specialist, in breach of the Code, had provided an inadequate medical service to the pregnant mother, resulting in the death of the foetus. The principal issue raised on appeal was whether the mother had suffered personal injury on account of the death of the foetus so as to attract cover under the accident compensation legislation, and thereby exclude recovery of damages under the Health and Disability Commissioner Act. [30] The Court of Appeal by majority (Blanchard and Glazebrook JJ dissenting) held that the mother was a person who had suffered personal injury by reason of the death of her unborn child. She therefore had cover under the accident compensation regime, and was barred from seeking compensatory damages arising directly or indirectly from that personal injury. This finding, however, did not prevent the mother from seeking damages under the Health and Disability Commissioner Act,for breaches of the Code that did not also arise from her personal injury. The father, too, was entitled in his own right to seek damages for breaches of the Code.Does "aggrieved person" mean "consumer"?[31] I recognise that this proceeding, unlike those in the Child Poverty, Amaltaland Freemasons cases, does not involve a claim of unlawful discrimination. But I am not persuaded that this affects the construction of "aggrieved person" as this term is used in the Health and Disability Commissioner Act. The meaning adopted in those cases is the ordinary meaning. Viscount Dilhorne made this point in Arsenal Football Club Ltd v Smith (Valuation Officer) [1977] 2 All ER 267 (HL). "To be aggrieved", he said at p280, "a person must be affected by the matter of which he complains". [32] The Oxford English Dictionary confirms that this is the ordinary natural meaning of "aggrieved person". A person is "aggrieved" when injured or wronged in his or her "rights, relations, or position", or where he or she is "injuriously affected by the action of any one". This definition confirms that a person need not be a primary victim to be "aggrieved". And in Attorney-General of The Gambia v N'Jie [1961] 2 All ER 504 the Privy Council held that the Attorney-General of The Gambia had standing to petition for special leave to appeal as a "person aggrieved" in terms of s31 of the West African (Appeal to Privy Council) Order in Council 1949. Lord Denning, delivering the Board's judgment, emphasised at p511 that "The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation". [33] The language of Part 4, Subpart 6 of the Act confirms that an "aggrieved person" need not be a "consumer". Proceedings may be commenced before the Human Rights Review Tribunal by the Director in the interests of "the complainant (if any)" or "the aggrieved person (if not the complainant)": s50(4). An "aggrieved person" can also, in certain circumstances, bring proceedings in his or her own right: s51. Similarly, the circumstances in which the Tribunal may award damages under s57 (a) to (c) are all tied to harm to an "aggrieved person", rather than harm to a "consumer". None of these provisions refers to "health consumers" or "consumers"more generally, although these are defined in s2 of the Act and in cl.4 of the Code, respectively. To read "aggrieved person" as "health consumer" or "consumer" would involve construing an undefined term in a manner different to its ordinary sense, when Parliament could quite easily have used the defined terms in ss50 and 51. The legislature plainly intended, in my opinion, that rights in respect of breaches of the Code should not be confined to health consumers. It is significant that the aggrieved person need not prove negligence; in other words, liability does not require a pre-existing duty of care. [34] Mr Hodson emphasised the potentially wide scope of the remedies if they are not confined to consumers. However, a person is not aggrieved unless injuriously affected by the actions of the health care provider. He or she also has the burden of establishing a breach of the Code vis-à-vis a health consumer and a sufficient causal connection between that breach and the harm suffered by the aggrieved person. Presumably the legislature had caregivers in mind. [35] Mr Hodson also argued that liability to others may compromise a doctor's duty to his or her patient. I agree that the legislation may introduce a duty to others who may be injuriously affected by the health care provider's actions, but it is not obvious that the primary duty to the consumer or patient will be compromised as a result. After all, liability to others rests on a breach of the Code vis-à-vis the health consumer.Decision[36] The term 'aggrieved person' in the Health and Disability Commissioner Act is not confined to consumers of health services as defined in the Code of Health and Disability Consumers' Rights. That being so, it was open to the Tribunal to conclude on the facts that SW's parents were aggrieved persons. Indeed, Mr Hodson did not suggest otherwise. The application for review fails. [37] I am minded to fix costs on a 2B basis with provisions for one counsel.[38] Memoranda may be filed if counsel cannot reach agreement. Miller JIn accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 28th day of January 2008.Solicitors:Bartlett Partners, Wellington for the Appellant Crown Law Office, Wellington for the Respondent