P v NEW ZEALAND PSYCHOLOGISTS BOARD [2023] NZHC 316

P v NEW ZEALAND PSYCHOLOGISTS BOARD [2023] NZHC 316 [27 February 2023]PERMANENT SUPPRESSION OF NAME AND IDENTIFYINGPARTICULARS OF APPLICANT GRANTED UNDER S 112 OF THE HEALTHPRACTITIONERS COMPETENCE ASSURANCE ACT 2003 – SEE [161] OFJUDGMENT.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-320[2023] NZHC 316UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN PApplicantAND NEW ZEALAND PSYCHOLOGISTSBOARDRespondentHearing (by VMR): 13 February 2023Counsel: A H Waalkens KC and S Courtney for the ApplicantJ Coates and T Morrison for the RespondentJudgment: 27 February 2023JUDGMENT OF GWYN JSolicitors:Sandi Anderson & Partners, AucklandClaro Law, WellingtonTABLE OF CONTENTSIntroduction [1]Background [3]Statutory framework [9]Professional Conduct Committees [15]Proceedings before the Tribunal [28]The complaint against P [34]The maintenance of professional boundaries in general [44]Management of the client's care in the context of the duration of the relationship[52]P's alleged role in the management of the client's personal affairs [57]The PCC recommendation [59]Board consideration and direction [62]Issues before the Court [78]Did the Board have power to direct the PCC to reconsider? [79]Board's submissions [83]Applicant's submissions [89]Discussion [95]Principle of finality [95]Threshold [106]Breach of Code of Ethics [117]Consistency [123]Conclusion [135]Was the direction given to the PCC by the Board unlawful and/or improper?[136]Discussion [145]Relief [150]Permanent name suppression [152]Costs [163]Introduction[1] This is an application by P for judicial review of a decision by the New ZealandPsychologists Board (the Board), to direct a Professional Conduct Committee (PCC)to reconsider a decision it had made following an investigation into a complaint madeagainst P.[2] The applicant says that the Board's decision and the direction it provided to thePCC were unlawful and/or unreasonable.Background[3] P is a psychologist. On 4 February 2021 the Board received a complaint aboutP, alleging numerous breaches of professional boundaries over the course of P'sprofessional relationship with a client. The complainant is the brother of the client.[4] The Board considered the complaint and referred it to a PCC for investigationunder s 68(1) of the Health Practitioners Competence Assurance Act 2003 (Act).[5] On 3 February 2022 the PCC concluded its investigation and issued its finalreport to the Board, P and the complainant. In its report, the PCC found that P'sconduct was in breach of their professional Code of Ethics and professional standards,in that:(a) P failed to maintain professional boundaries with their client;(b) P's clinical management did not reflect the standards expected of aregistered psychologist; and(c) P's role in the management of their client's personal affairs reflected atotal lack of insight into the meaning of professional boundaries andconflicts of interest.[6] The PCC's decision under s 80(1) of the Act was to recommend that the Boardreview P's competence. The PCC did not consider that a charge ought to be broughtfor professional misconduct in the Health Practitioners Disciplinary Tribunal(Tribunal).[7] On 14 April 2022 the Board considered the PCC's report and concluded thatthe PCC had failed to apply the correct legal test for professional misconduct and thethreshold for laying a disciplinary charge before the Tribunal.[8] The Board decided to direct the PCC to reconsider its decision. That directionwas communicated to the PCC in a letter dated 2 June 2022.Statutory framework[9] The principal purpose of the Act is to "protect the health and safety of membersof the public by providing for mechanisms to ensure that health practitioners arecompetent and fit to practise their professions".1[10] The Act provides a legal framework for the management of complaints abouthealth practitioners. The Act establishes or continues in existence authorities whichare bodies responsible for the regulation and oversight of practitioners of a particularhealth profession.2 The New Zealand Psychologists Board is a responsible authorityunder the Act.3 One of the functions of an authority is to "receive information fromany person about the practice, conduct, or competence of health practitioners and, if itis appropriate to do so, act on that information".4[11] Authorities also have the function of setting standards of ethical conduct to beobserved by health practitioners of the profession regulated by the particularauthority.5[12] Part 3 of the Act is concerned with competence, fitness to practise and qualityassurance. "Competence reviews", which a PCC can recommend under s 80(2)(a),are conducted under Part 3. The competence review process is designed to be1 Health Practitioners Competence Assurance Act 2003, s 3(1) (Act).2 Sections 5 and 114.3 Section 114, sch 2.4 Section 118(1)(f).5 Section 118(1)(i).educative and to ensure that practitioners are practising at the "required standard ofcompetence."6[13] Part 4 of the Act addresses complaints and discipline against practitioners.[14] Where a responsible authority has information in its possession that itconsiders raises one or more questions about the appropriateness of a healthpractitioner's conduct or the safety of their practice, the responsible authority mayrefer the matter to a professional conduct committee for investigation.7Professional Conduct Committees[15] PCCs are appointed by the responsible authority in accordance with s 71. APCC is appointed by the relevant authority "in relation to a particular case or cases ofa particular class".8[16] The PCC must comprise three members – two health practitioners who areregistered with the authority and one layperson.9[17] The authority appoints one member to preside at meetings.10[18] The authority must consult with the relevant practitioner and the complainantabout the intended membership of the PCC.11 The authority must have regard to anyobjection raised by the practitioner or the complainant, but the decision onappointment remains with the authority.12[19] PCCs are funded by the responsible authority from a disciplinary levy that isimposed on practitioners and collected by the authority.136 That term is defined in s 5; and see also s 36(5).7 Section 68(1).8 Section 71(1).9 Section 71(1).10 Section 71(3).11 Section 74(1).12 Section 75.13 Section 131(1).[20] A PCC may regulate its procedure as it thinks fit.14 A PCC must act inaccordance with the rules of natural justice and the provisions of the Act.15[21] A PCC may appoint a legal advisor and/or investigator to assist with itsinvestigation.16[22] A PCC has broad powers to receive evidence and call for information anddocuments.17[23] At the conclusion of its investigation, the PCC must make one or morerecommendations under s 80(2) and/or a determination under s 80(3):(2) The recommendations referred to in subsection (1)(a) are—(a) that the authority review the competence of the healthpractitioner to practise his or her profession:(b) that the authority review the fitness of the health practitionerto practise his or her profession:(c) that the authority review the practitioner's scope of practice:(d) that the authority refer the subject matter of the investigationto the Police:(e) that the authority counsel the practitioner.(3) The determinations referred to in subsection (1)(b) are—(a) that no further steps be taken under this Act in relation to thesubject matter of the investigation:(b) that a charge be brought against the health practitioner beforethe Tribunal:(c) in the case of a complaint, that the complaint be submitted toconciliation.[24] The PCC must give the health practitioner concerned and any complainant areasonable opportunity to make submissions and be heard on the matter underinvestigation, before making a recommendation or determination.1814 Section 72(2).15 Section 72(3).16 Section 73.17 Sections 76–77.18 Section 80(4).[25] After a PCC has made its recommendation(s) and/or determination under s80(1), it is required to give written notice of its decision to the Registrar of theresponsible authority, the health practitioner and the complainant.19[26] A responsible authority that receives notice of a recommendation from a PCCmust promptly consider that recommendation.20[27] There is no statutory right of appeal against a recommendation ordetermination of a PCC made under s 80. The statutory rights of appeal against otherdecisions made under the Act are set out in s 106(2) and include a right of appeal tothe High Court against an order made by the Tribunal under s 100.Proceedings before the Tribunal[28] The Tribunal is established under s 85 of the Act. Its functions include to hearand determine charges brought under s 91.21[29] The membership of the Tribunal consists of a chairperson and one or moredeputy chairpersons, each of whom must be a barrister or solicitor of the High Courtof not less than seven years' practice, together with the members of the panelmaintained by the Minister under s 87.22 The panel members are practitioners of eachprofession, who must hold current practising certificates, and lay people.23[30] A disciplinary charge against a health practitioner can be laid before theTribunal by either a PCC, following an investigation under the Act, or the Director ofProceedings, following an investigation by the Health and Disability Commissionerunder the Health and Disability Commissioner Act 1994.24[31] If a charge is laid by a PCC, it has the responsibility for formulating andprosecuting that charge before the Tribunal.25 A disciplinary charge laid before the19 Section 81(1).20 Section 81(3).21 Section 85(a).22 Section 86(1).23 Section s 87.24 Section 91(1).25 Section 91(4).Tribunal by a PCC must include a statement to the effect that the PCC has reason tobelieve that a ground exists entitling the Tribunal to exercise its powers under s 100.26[32] The Tribunal's powers in s 100 are powers to make a finding on a disciplinarycharge including a finding that the practitioner has been guilty of professionalmisconduct under s 100(1)(a) and/or s 100(1)(b).[33] The grounds on which a practitioner may be disciplined are:27100 Grounds on which health practitioner may be disciplined(1) The Tribunal may make any 1 or more of the orders authorised bysection 101 if, after conducting a hearing on a charge laid undersection 91 against a health practitioner, it makes 1 or more findingsthat—(a) the practitioner has been guilty of professional misconductbecause of any act or omission that, in the judgment of theTribunal, amounts to malpractice or negligence in relation tothe scope of practice in respect of which the practitioner wasregistered at the time that the conduct occurred; or(b) the practitioner has been guilty of professional misconductbecause of any act or omission that, in the judgment of theTribunal, has brought or was likely to bring discredit to theprofession that the health practitioner practised at the time thatthe conduct occurred; or(c) the practitioner has been convicted of an offence that reflectsadversely on his or her fitness to practise; or(d) the practitioner has practised his or her profession while notholding a current practising certificate; or(e) the practitioner has performed a health service that forms partof a scope of practice of the profession in respect of which heor she is or was registered without being permitted to performthat service by his or her scope of practice; or(f) the practitioner has failed to observe any conditions includedin the practitioner's scope of practice; or(g) the practitioner has breached an order of the Tribunal undersection 101.26 Section 91(2).27 Section 100.The complaint against P[34] The client's brother made the complaint to the Board on 4 February 2021. Thecomplaint alleged breach of professional boundaries by P in relation to the client, overthe 27-year period of their psychologist/client relationship.[35] On 8 July 2021, after the complaint had been through the relevant processunder the Health and Disability Commissioner Act, and had been returned to theBoard, the Board decided to refer the complaint to the PCC under s 68 of the Act.[36] The Board asked the PCC to consider:Is the nature of [P's] relationship with the client appropriate, having regardto (but not limited to):i. The maintenance of professional boundaries in general;ii. The management of the client's care in the context of theduration of the relationship; andiii. [P's] alleged role in the management of the client's personalaffairs.[37] In early August 2021 the PCC wrote to the complainant and to P advising themof the particulars of the matter the PCC was to investigate, the limits on the PCC'sjurisdiction, the PCC's natural justice obligations under the Act and the process thePCC would follow. Further information was sought from both the complainant and P.In addition, using its powers under s 77 of the Act, the PCC sought information fromtwo other psychologists, both of whom had acted or were currently acting, assupervisors for P.[38] The PCC also obtained clinical notes from P.[39] Both the complainant and P were offered the right to meet in person with thePCC.28 The complainant met with the PCC by Zoom, with two support personsattending.28 Section 80(4).[40] All of the relevant information held by the PCC was provided to P and a Zoommeeting was conducted with P and their legal representative on 19 November 2021.[41] The PCC concluded its investigation on 31 January 2022 and issued its reporton 3 February 2022 (the PCC Report).[42] The findings of the PCC were:P's conduct was in breach of [their] professional Code of Ethics, primarilyrelated to Principle 3: Integrity in Relationships:Clause 3.3: Psychologists taking responsibility to maintainappropriate structure in their relationships with persons and peoplewith whom they work, andClause 3.4: Psychologists recognise that conflict of interests are athreat to the integrity of relationships.[43] In relation to the three specific matters the PCC was asked to consider, itconcluded as follows.The maintenance of professional boundaries in general[44] The bulk of the PCC's analysis related to this matter. The PCC noted that itwas not confident that, as asserted by P, they had maintained professional andtherapeutic boundaries throughout the course of the engagement between them andthe client.[45] It noted in particular:(a) A home visit by P to the client in approximately 2016.(b) Intervention by P to assist the client to find accommodation, after theclient had been placed in Women's Refuge.(c) Contact with the client's children, at the client's request, after hersecond serious self-harm attempt in 2020.(d) When the client started a relationship with her next-door neighbour, Pbecame involved in trying to protect the partner's children, who weretaken away from him.(e) P agreed to prepare a court report for the client's partner (who hadassaulted the client and was facing criminal charges). P explained tothe PCC that they had not agreed to complete the report but did notwant to be seen by the client as being unsupportive. The PCC notedthat the provision of misleading information indicated a lack of roleclarity, poor clinical decision making and poor professional boundaries.(f) In 2020 P became involved in the client's letter of complaint about theclient's GP. The PCC noted this engagement had the potential toundermine role clarity and professional boundaries.(g) In 2021 the client gave P an envelope of jewellery for safekeeping.(h) P visited the client in hospital prior to and after the client's surgery. Psaid they did so to provide psychological support. During the courseof one visit P signed (as a signatory witness) a document presented bythe client, which was the client's will, although P said they were notaware it was a will and did not know the content (including that P'sspouse's karate club was a significant beneficiary). A clinical notecontradicted P's statement that they did not know it was a will.[46] The PCC noted that these matters brought into question P's statement that theymaintained professional boundaries at all times.The PCC considers that [P] was confused in [their] understanding of thestandard of professional boundaries expected by a Clinical Psychologist in aprofessional client/psychologist relationship. It is also questionable as to howthe client knew the details, including the address, of [P's spouse's] karate club.[47] The PCC also noted that it had other concerns with regards to P's practice (suchas recordkeeping) and the establishment and maintenance of appropriate professionalboundaries between P and the client which were highlighted in additional statementsprovided by P.[48] In December 2020 when the client was in hospital after a self-harm event, Papparently made decisions as next of kin to facilitate the client's transfer to arehabilitation service. The PCC notes that this blurred the boundaries defining therelationship between P and the client.[49] P advised the PCC of having received limited gifts from the client (a tea treeplant many years ago and glass plates in late 2020). P also advised the PCC that theycame into possession of the client's drumkit, via the client's boarder who deliveredthis to their home. P subsequently sold the drum kit rather than gifting it as the clienthad requested, as in their view the client would benefit from having the money, havingsurvived her self-harming event. The PCC notes that P's description of the eventsrelating to the sale of the drumkit highlights concerns relating to blurred boundariesand roles within the therapeutic relationship.[50] The PCC noted it had limited evidence that, despite the duration of therelationship, supervision was sought specifically with respect to the client, other thanon one occasion when P had grounds to notify the police about risk issues.[51] The PCC said:[P] presented to the PCC as having little insight with respect the blurring ofprofessional boundaries. It is therefore perhaps unsurprising that [P] did notseek supervision given the assessed lack of insight [P] demonstrated regardingpotential conflict of interests or dual roles (despite the issues re: text/phonecalls; being asked to contact family members, being asked to execute a will;storage of personal effects and home visits) during the PCC process.Management of the client's care in the context of the duration of the relationship[52] The PCC noted that this issue was largely covered in its consideration of thepreceding issue.[53] The PCC assessed that P had attempted to hold the best interests of the clientin mind throughout the duration of their therapeutic relationship. The PCC viewedthat P had clearly established a strong, trusting relationship with the client and had awell-established therapeutic connection. The PCC said:It is unclear however what progress was made towards treatment goals andhow the formulation was developed over the lengthy period of the therapeuticrelationship and engagement. In addition, the duration of the relationshiplikely contributed to insufficient attention to clinical matters, overfamiliarityand erosion of boundaries resulting in potentially unsafe, and contraindicated,engagement and intervention.[54] The PCC also noted a significant absence of good record keeping. There wasno documentation relating to informed consent, confidentiality, the parameters of theengagement; there was limited and inconsistent clinical notes; absence of a clearintervention or safety plan and an absence of documented and/or reviewed goals. ThePCC said that "[e]ngagement was ad hoc, unstructured, and inconsistent."[55] The PCC found that the relationship lacked clear boundaries and there wererepeated breaches of professional boundaries without clearly documented detailsand/or clinical rationales. P on frequent occasions acted, within the therapeuticrelationship, in a manner that would not be within the Code of Ethics expected in aprofessional capacity as a psychologist.[56] P developed boundaries with the client that were inconsistent, questionable andunsafe.P's alleged role in the management of the client's personal affairs[57] The PCC found this was of serious concern: the evidence demonstrated that Pengaged in a number of activities that fell outside the professional role of thepsychologist (namely, safekeeping of jewellery, involvement in selling the client'spossessions, being the contact point for the client's boarder and subsequently inpossession of the client's house keys, signing the client's will and being identified as"next of kin").[58] The PCC was also concerned that in retrospect P struggled to see that theirbehaviour led to confusing boundaries within the relationship. The PCC said "[t]hislack of insight or ability to reflect constructively and critically into [their] own practicewas further concerning."The PCC recommendation[59] In conclusion, the PCC Report noted:5.1.1. [P] did not maintain general professional boundaries with [their]client. However we are of the opinion that was a reflection of [P's]total lack of insight of what professional boundaries and conflict ofinterest mean, and was not done with malicious intent or to achievepersonal gain.5.1.2. The clinical management of the client by [P] did not reflect thestandards expected of a Registered Psychologist. For example, [P] hadno concept of expected practice in terms of comprehensive clinicalrecord keeping, informed consent, formulation of therapeutic goalsand client safety plans.5.1.3. In terms of [P's] alleged role in the management of [the client's]personal affairs, again we feel that this is an example of [P] having noinsight into what professional boundaries and conflict of interest mean– particularly when a Registered Psychologist has a multi-yearenduring relationship with a client. We are of the opinion that anyinvolvement in [their] client's personal life affairs was not done withpremeditated intent for [P's] own personal gain".[60] The PCC's conclusory paragraph was:The PCC turned its mind as to whether the breaches it has found underminepatient safety in such a way that a charge ought to be formulated forprofessional misconduct in the Health Practitioners Disciplinary Tribunal.The PCC did not consider this threshold to be met but, rather, considered that[P's] substantiated failings can be remedied by a competence review as set outbelow.[61] The PCC recommended, under s 80(2)(a), that the Board review thecompetence of P to practise their profession, focusing on the competencies of:(a) The establishment of clear role clarity and therapeutic and professionalboundaries with clients;(b) Clinical record keeping (including, but not limited to, aspects ofinformed consent, case notes, documentation of payment for services,formulation and therapeutic goals);(c) Consideration as to the advantages and disadvantages of the use ofvarious modes of therapeutic delivery (including but not limited to faceto face, telehealth, written communications);(d) Risk management (including risk assessment and planning); and(e) The consistent use of, and structures around, supervision.Board consideration and direction[62] The Board referred the PCC Report to the Board's Conduct, Competence andFitness Committee (CCFC). The CCFC considered the PCC Report at its meeting on14 February 2022. The CCFC "noted surprise at the PCC's recommendation givensome of the findings the PCC recorded in the report". The CCFC referred the reportto the Board.[63] On 4 March 2022 the Board indicated to P its preliminary view not to acceptthe outcome of the PCC investigation and that the complaint should be referred backto the same PCC for reconsideration. P's counsel responded that the Board had nopower to do so and the proposal was improper and unlawful.[64] In the intervening period, the Board received a number of communicationsfrom the complainant, raising a number of concerns about the PCC's investigation andrequesting information about how to challenge the outcome.[65] On 14 April 2022 the Board met to consider the submissions it had received onits preliminary view. It concluded that the PCC had failed to apply the correct legaltest for professional misconduct and the threshold for laying a disciplinary chargebefore the Tribunal and that it would direct the PCC to reconsider the decision it hadmade under s 80(1) of the Act.[66] The Board minutes of 14 April 2022 recorded that, in reaching the decision todirect the PCC to reconsider, it "faced a dilemma", in that the complainant was veryunhappy with the decision made by the PCC and had threatened legal action. P hadsuggested that the Board had no power to interfere with the PCC's decision. The Boardtherefore considered it needed to weigh up the competing rights and interests of thoseinvolved and be guided by the first principles of its role – that is, acting in a way thatachieves public protection and objectives of the Act. The minutes recorded that "it[was] not in the public interest for the Board to need to incur financial costs andpossibly reputational damage in responding to a challenge to a decision of a Boardcommittee in circumstances where the Board considers the decision is flawed." TheBoard also noted P's interests in finality.[67] The Board concluded that a direction to the PCC to reconsider the decisionmade under s 80(1) of the Act, but not to reinvestigate the complaint, was the approachthat best accounted for the different interests at play.[68] On 2 May 2022 the Board's Registrar wrote to P's counsel to provide notice ofthe decision to direct the PCC to reconsider its decision and advised that the next stepwould be for the Registrar to issue the direction to the PCC.[69] P's counsel responded on 6 May 2022 advising that judicial reviewproceedings would be filed if the Board did not withdraw its decision.[70] On 12 May 2022 the Board's solicitors responded to P's counsel, advising thatthe Board would not be withdrawing its decision but would agree to take no furtheraction provided that P filed their judicial review without undue delay, and by no laterthan 20 May 2022.[71] On 23 May 2022 counsel for P responded advising that P had decided to takea "pragmatic approach" and would agree to the Board proceeding to redirect the PCC,provided P had the opportunity to comment on the direction the Board proposed togive to the PCC.[72] On 25 May 2022 the Board's solicitors responded attaching a draft proposedinstruction letter to the PCC. The letter made it clear that the Board was not seekingP's agreement to the instruction, but rather providing an opportunity to comment.[73] On 26 May 2022 counsel for P returned a tracked change version of the draftproposed instruction letter to the PCC.[74] On 2 June 2022 the Board's solicitors responded attaching a copy of the finalredirection letter that had been sent to the PCC. While the Board confirmed that it hadconsidered P's comments and proposed amendments, the redirection letter sent to thePCC included only one of P's proposed changes: the last sentence read "The Boardlooks forward to hearing from the PCC once it has reconsidered this matter."[75] The Board's direction was communicated to the Chair of the PCC in a letterdated 2 June 2022 (the redirection letter):29The PCC is directed to complete the following steps in order to reach a newdecision under s 80(1):1) Reconsider its decision under s 80(1) HPCAA.2) Undertake the reconsideration referred to in 1) above by applying thefollowing considerations to the findings that the PCC has made inparagraphs 4 and 5.1.1 –5.1.3 ["Recommendation and/orDetermination] of its report:a. The established legal tests as to professional misconductunder s 100(1)(a) and (b) HPCAA. These are the tests set bythe Health Practitioners Disciplinary Tribunal and the courtswhen interpreting s 100(1)(a) and (b) HPCAA.b. The threshold for determining whether a charge should be laidbefore the Health Practitioners Disciplinary Tribunal.c. The Board's Professional Conduct Committee Guidelines, inparticular, the decision making guidance in part D ofAppendix D.3) Prior to making any new decision, provide Ms Visser an opportunityto make submissions and be heard by the PCC.4) Make a new decision under s 80(1) HPCAA and provide an amendedreport to the Board under s 81 HPCAA.The PCC is not required to re-open its investigation. Rather, in reconsideringits decision, the PCC should proceed on the basis of the findings that it hasmade and recorded in paragraphs 4 and 5.1.1 – 5.1.3 of its report.29 (original emphasis).[76] On the same day, P's counsel responded that the Board's actions wereunreasonable and that counsel had instructions to file judicial review proceedings.Counsel requested that the Board confirm the PCC would be instructed to take nofurther action in the interim.[77] Subsequently, the parties reached an interim agreement under which the Boardhas directed the PCC to take no further action pending the outcome of theseproceedings. On 2 June 2022 the Board's Registrar wrote to the Chair of the PCC andadvised that the PCC was to take no further action on the matter and that the Chairshould not circulate the letter to their fellow PCC members at this point. The letterasked that the Chair advise the Registrar if that circulation had already occurred.Issues before the Court[78] The two principal issues for decision are:(a) the Board's decision to direct the PCC to reconsider its decision; and(b) the direction given to the PCC by the Board.Did the Board have power to direct the PCC to reconsider?[79] The parties agree that a PCC is permitted to reconsider a decision under s 80(1)of the Act where there are exceptional circumstances, such as a clear and fundamentalerror.30[80] The parties are also agreed that the two-step test identified by the Court ofAppeal in F v Medical Practitioners Disciplinary Tribunal is applicable to cases ofthis nature:31(a) Has there been a departure from acceptable professional standards?30 K v The Complaints Assessment Committee of the Teaching Council of Aotearoa New Zealand[2022] NZHC 307 at [96].31 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA), cited with approval inH v Director of Proceedings [2018] NZHC 2175 at [19].(b) Is the departure significant enough to warrant sanction?[81] There is no dispute that the Tribunal is required to approach the first stage ofthe two-step process in the way it has always done, by considering "whether thepractitioner has departed from the acceptable professional standards."32[82] Where the parties disagree is as to what conduct meets the second step, thethreshold question, and whether the PCC considered that threshold question andapplied the right legal test. If it did not, whether that constitutes a clear andfundamental error that would allow the PCC process to be revisited.Board's submissions[83] The Board raised a number of preliminary factors in support of the generalproposition that the PCC's decision could be reopened:(a) The PCC is an investigatory or administrative body and has no poweritself to make a finding of professional misconduct.(b) It is the Board, rather than the PCC itself, that is seeking to reopen thePCC decision.(c) The nature of the PCC decision – that is, it was a recommendation, nota determination.[84] The Board's position is that the criteria for reopening the PCC process are metbecause:(a) the PCC made a clear and fundamental error by failing to consider theproper legal test when determining whether its factual findings aboutP's conduct warranted a charge of professional misconduct being laid;and32 Martin v Director of Proceedings [2010] NZAR 333 (HC) at [22].(b) this amounts to exceptional circumstances and/or compelling groundsrequiring that the Board be permitted to direct the PCC to reconsider itsdecision.[85] The Board says that, in deciding under s 80 whether or not to make adetermination to lay a charge before the Tribunal, a PCC must properly reach a viewas to whether a ground exists that would entitle the Tribunal to exercise its powersunder s 100. Mr Coates for the Board says it is clear that the PCC did not apply thecorrect legal test for professional misconduct and the threshold for laying a chargebefore the Tribunal.[86] The only place in its report where the PCC considers this question is where itsays, as quoted at [60] above, that it turned its mind to whether P ought to face aprofessional misconduct charge.[87] The Board says that "undermining patient safety" is not the threshold for layinga charge before the Tribunal.[88] The Board says that the PCC also failed to consider and/or place proper weighton established principles in the health practitioners competence assurance jurisdiction,including protection of the public; setting of standards for the profession; andconsistency in accountability. In particular, the Board points to the PCC's finding thatP was in breach of the Code of Ethics to support its submission that the PCC did notapply the correct threshold. Similarly, it says that the lack of consistency between P'ssituation and other comparable cases indicates it did not apply the correct threshold.Applicant's submissions[89] Mr Waalkens KC, counsel for P, submits that it is not open to the Board, or thisCourt, to speculate as to whether the PCC may have misdirected itself on the relevantlegal test, given that it is plain it considered and determined that the threshold forformulating a charge had not been met. Mr Waalkens highlights the advice from theCCFC to the Board, which said " on the face of it the PCC may have misdirecteditself on the relevant law ".33 Similarly the Board minutes of 23 February 2022 state"[t]he PCC appears to have misdirected itself as to the 'threshold' for professionaldiscipline."34 Counsel says it is plain that neither the CCFC nor the Board itself coulddefinitely conclude that the PCC had applied the wrong test.[90] The applicant says that, in any event, only the most serious misconduct reachesthe threshold. P relies on, among other cases, Cole v PCC, where Gendall J said: "Itis clear that a finding of professional misconduct is a significant matter indeed. Itshould be reserved for only the most serious misconduct."35[91] The applicant also relies on Vatsyayann v PCC, where Simon France J said:36 it is plain that something more than a breach of acceptable standards isrequired, because otherwise there would be no need for step 2. It is also plainthat the breach must be of sufficient significance to merit recording a findingof professional misconduct against the practitioner[92] Similarly in J v Director of Proceedings, Baragwanath J said "[p]rofessionalmisconduct expresses a high threshold of breach of duty."37 And more recently inJohns v Director of Proceedings Moore J – although agreeing that Martin v DPP isthe correct approach38 – confirmed that the threshold question is one which ought tobe considered with care having regard to the purposes of the Act, principally ofprotecting the public, and the inevitable adverse consequences borne by thepractitioner in the event of a finding of professional misconduct.39[93] Mr Coates for the respondent relies on Martin v Director of Proceedings whereCourtney J concluded:40 Given the wide range of conduct that might attract sanction, from relatively low-level misconduct to misconduct of the most reprehensible kind, the threshold shouldnot be regarded as unduly high.33 (emphasis added).34 (emphasis added).35 Cole v PCC [2017] NZHC 1178 at [45].36 Vatsyayann v PCC HC Wellington CIV-2009-482-259, 14 August 2009 at [8].37 J v Director of Proceedings HC Auckland CIV-2006-404-002188, 17 October 2006 at [35].38 At [85].39 Johns v Director of Proceedings [2017] NZHC 2843 at [86].40 Martin v Director of Proceedings, above n 32, at [32].[94] The Board also relies on the more recent decision in Professional ConductCommittee of the Physiotherapy Board v R where Powell J said "I am satisfied therespondent's conduct was sufficiently serious to warrant disciplinary sanctions orpenalties. It is after all a threshold rather than a substantive hurdle".41DiscussionPrinciple of finality[95] The starting point is the principle of finality, summarised by the Court ofAppeal in Goulding v Chief Executive Ministry of Fisheries:42A valid administrative decision in the exercise of a statutory powercommunicated to the persons to whom it relates, in a way that makes it clearthe decision is not of a preliminary or provisional kind, it is final. A finaldecision which is made in the exercise of a power which affects legal rights is irrevocable. So is any other decision made under a statutory powerwhere the Act explicitly or implicitly provides that once finally exercised thepower of decision is spent. That is the position under the common law. [96] The Court of Appeal in Goulding acknowledged the possibility of exceptionalcases.43[97] I consider first the preliminary issues raised by the Board at [83] above. Thefirst of those concerns the nature of the body whose decision is sought to be reopened.A review of the cases indicates that the application of the principle of finality is lessabsolute in relation to administrative bodies44 and is limited in the context ofinvestigative processes..45[98] However, the PCC is not purely an investigatory or administrative body. It hasboth an investigatory and a deliberative function. It may receive evidence;46 requirethe production of papers, documents, records or things.47 Under s 80 of the Act it isrequired to make one or more recommendations and/or determinations. Although it41 Professional Conduct Committee of the Physiotherapy Board v R [2018] NZHC 2531 at [31].42 Goulding v Chief Executive Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].43 At [30].44 See K v The Complaints Assessment Committee, above n 30, at [55].45 XYZ v Legal Professional Board of Tasmania [2014] TASFC 13, (2014) 23 Tas R 179, cited in Kv The Complaints Assessment Committee, above n 30, at [58].46 Act, s 76.47 Section 77.has power to regulate its own procedure,48 it must comply with the rules of naturaljustice.[99] As to who seeks to reopen the decision, it is correct that, as the respondentsays, this case is different from K, in that here it is the Board – the statutory regulator– seeking to reopen the process. In K, the Complaints Assessment Committee (theequivalent of the PCC) was looking to reopen its own process. Mr Coates says thatmust make a difference: the conduct in question could be any one of a range of errorsby a PCC, for example, failure to comply with natural justice. In that situation, theBoard, with its broader role, must be able to direct the PCC to reconsider.[100] I am not persuaded that the identity of the body seeking to have the processreopened makes a difference. It is the nature of the alleged error that is key. That is,was there a clear and fundamental error?[101] Finally, does the nature of the PCC's decision affect the power to reopen itsprocess? In K, the CAC argued that the strength of the common law "finality"principle is strongly dependent on the finality of the particular decision at issue.49Counsel there argued that a decision bringing an investigation to an end without formaldetermination as to whether there has been misconduct or not sits at the low end of the"finality" spectrum.[102] But as in K, I am not convinced that the nature of the PCC decision – arecommendation, rather than a determination – is determinative. Goulding confirmsthat the principle of finality is strongest where legal rights are affected.[103] Here, in making its decision, the PCC was not acting merely in an investigatorycapacity. It undertook an investigation (which the Board acknowledges was thorough)and, on the basis of that investigation, made its recommendation (although decidingnot to make a determination).48 Section 72.49 K v The Complaints Assessment Committee, above n 30, at [66].[104] Although a PCC cannot itself make a finding of professional misconduct, thePCC's recommendation was one which "affected legal rights". The recommendationthat the Board review P's competence to practise the profession50 was of legalsignificance for P. The PCC's decision not to make a determination, under s 80(3),that a charge be brought against P before the Tribunal did affect P's rights. At thatpoint, they were no longer faced with the possibility of a Tribunal process.[105] I conclude that, as in K, it is only a clear and fundamental error that wouldallow the Board to direct the reopening of the PCC process.Threshold[106] The submissions before me focussed on what is the threshold at the secondstep – what departure from acceptable professional standards is significant enough towarrant sanction?[107] As I have outlined, the Board relies on Martin to submit that the threshold is"not unduly high", and it says that the way in which the PCC formulated the thresholdtest was therefore plainly wrong.51 In contrast, the applicant relies on Cole, and somesubsequent cases, to submit that it is "only the most serious misconduct" that meetsthe threshold.52[108] In Martin Courtney J undertook a comprehensive review of the legislativehistory of the Act. As the Court noted there, the range of conduct previouslyaccommodated in the three offences of disgraceful conduct, professional misconductand conduct unbecoming in now accommodated in the two forms of "professionalmisconduct" at s 100(1)(a) and (b) of the Act.53[109] I accept that the test in Martin is the correct test. As Courtney J said:54Given that misconduct within the scope of practice under s 100(1) can now coverconduct ranging from low-level misconduct to gross negligence and even deliberate50 Under Act, s 80(2)(a).51 Martin v Director of Proceedings, above n 32.52 Cole v PCC, above n 35.53 At [13].54 At [28].misconduct, a threshold articulated in the context of the equivalent of disgracefulconduct could not be applied to a charge under s 100(1)(a). If it did, many cases ofmisconduct in the scope of professional practice would be excluded from adisciplinary response, contrary to Parliament's obvious intention.[110] But that does not resolve the question. The Court is still required to assesswhether in fact the PCC did not apply this test.[111] The composition of the PCC is relevant. It is composed of two healthpractitioners, plus a layperson.55 Unlike the Tribunal, it is not required to have legallyqualified members. While a Committee may appoint a legal advisor,56 it is notrequired to do so. In those circumstances, a PCC is less likely to use precise legallanguage and should not be held to the same standard as the Tribunal in that regard.[112] Other aspects of the PCC report are relevant. The PCC notes in theintroduction to the report that "The report with recommendation(s) and/or adetermination is made under sections 80-81 of the HPCA Act." Section 80 sets outthe recommendations and determinations that were open to the PCC. Section 81(2)states that if the PCC decides to lay a charge against the health practitioner before theTribunal, the PCC must formulate an appropriate charge and lay it before the Tribunal.The PCC was thus aware of the consideration and process required of it.[113] In any event, there is some basis for the PCC's invocation of the language of"patient safety". The principal purpose of the Act is to "protect the health and safetyof members of the public by providing for mechanisms to ensure that healthpractitioners are competent and fit to practise their professions."[114] In addition, the PCC's conclusion followed what the Board acknowledges wasa thorough investigation. The PCC Report sets out the facts and its conclusions inconsiderable detail. Given the nature of the PCC's findings it was open for it toconclude that it was a competence issue, and to make a recommendation accordingly.[115] While the PCC statement on which the Board relies might be criticised forbeing economical, I agree with Mr Waalkens that it is simply not possible to go on and55 Act, s 71.56 Section 73.speculate about the PCC's reasoning and to reach a conclusion that it applied thewrong threshold. As Mr Waalkens noted, both the CFCC and the Board itself did notstate this as an unequivocal conclusion.[116] I cannot conclude on the basis of the wording in the PCC report alone that itapplied the wrong legal test.Breach of Code of Ethics[117] One of the Board's supporting arguments is that the PCC had found that P'sconduct was in breach of their professional Code of Ethics, primarily in relation toPrinciple 3: Integrity in Relationships.[118] It is clear that Codes of Ethics and/or professional Guidelines do not impose ade facto legal standard. As Professor Joanna Manning writes:57To date, the law has rejected "the dispositive stance", whereby guidelineswould define the de facto legal standard applied in every case. Just asevidence of accepted practice is not determinative, so also compliance with aguideline is not conclusive, but is strong evidence of the legal standard of care.[119] In Staite v Psychologists Board,58 the High Court noted that:The code of ethics of the New Zealand Psychological Society should not betreated as a straight-jacket [sic] to be applied irrespective of the circumstancesand context in which the psychologist is acting.[120] Similarly, in Collie v Nursing Council of New Zealand, Gendall J said:59Breach of a standard in a code may or may not be professional misconduct, orother conduct deserving of disciplinary sanction. It all depends and is aquestion of degree.57 Peter Skegg and Ron Paterson (eds) Health Law - A to Z of New Zealand Law (onlinelooseleaf ed, Thomson Reuters, Wellington, 2015) at [30.5.6] (footnotes omitted).58 Staite v Psychologists Board [1998] 18 FRNZ 18 (HC) at 34.59 Collie v Nursing Council of New Zealand [2001] NZAR 74 (HC) at [30].[121] This approach was affirmed by Gendall J in XY v Professional ConductCommittee of the Medical Council of New Zealand.60 And, most recently, in Edwardsv PCC, Lang J cited Staite with approval, noting:61 codes and standards should be regarded as a guide to be taken into accountby the Tribunal when exercising its independent judgment as to whether, inthe circumstances of a particular case, there has been professional misconduct.[122] I conclude that the PCC's finding that P had breached the Code of Ethics doesnot, in itself, mean that it is clear that the PCC did not apply the correct threshold test.Consistency[123] The Board notes that one aspect of its role is to ensure consistency in theapplication of standards of ethical conduct and accountability generally. It noted inthe minutes of the 23 February 2022 Board meeting: " the PCC's decision seemsinconsistent with other cases where charges have been laid against practitioners beforethe Tribunal".[124] The Board relies on a range of previous authorities where, it says, similarconduct to that found in relation to P was held to meet the threshold. It seems to be atleast implicit in the respondent's argument that if the PCC had applied the "correct"threshold test, it would have directed a disciplinary charge.[125] The Board is, in effect, asking the Court to reason backwards: on the basis ofprevious cases, which the Board says are comparable, the PCC should have concludedthat a disciplinary charge was required. It follows that its failure to lay a charge, meantthat it had applied the incorrect threshold.[126] That reasoning does not withstand scrutiny. First, it is not for the Board, orthis Court, to determine whether the PCC should have concluded that a disciplinarycharge was necessary.60 XY v Professional Conduct Committee of the Medical Council of New Zealand [2022] NZHC 1498at [129].61 Edwards v PCC [2022] NZHC 3189 at [12].[127] Second, the cases cited by the respondent do not necessarily support theBoard's view. On closer examination, most or all of those cases involved conduct ofa more serious nature, or a combination of conduct that cumulatively was moreserious. For example, in Schubert,62 a decision of the Tribunal, the charges concerneda psychologist who was providing couples counselling to S and E. The psychologistentered into separate relationships with each of S and E. Those relationships included:(a) inviting S to a social event;(b) staying with S at a holiday house;(c) giving gifts to S;(d) visiting E at his house where they had lunch and went swimming;(e) visiting E at his house, drinking wine and talking to E about S'scomplaint against Ms Schubert;(f) disclosing S's personal health information to E;(g) putting pressure on E to persuade S to withdraw S's complaint againstMs Schubert.[128] In Cole v Professional Conduct Committee,63 a prison-employed registerednurse provided accommodation in her home to a former patient/prisoner on his releasefrom prison. They subsequently had a sexual relationship (although Ms Cole says itwas not consensual).[129] Le Roux was also a decision of the Tribunal. There the client's case was notedas "very complex" and included a number of "alters" associated with the client'sDissociative Identity Disorder. Ms Le Roux, the psychologist concerned, had receivedgifts from her client which the Tribunal accepted were "in excess of what could62 Schubert 671/Psy14288P.63 Cole v Professional Conduct Committee, above n 35.reasonably be expected in any psychologist/client relationship."64 In addition, theTribunal found that the number and content of emails between Ms Le Roux and theclient were extraordinary, unduly frequent and too long, included both encouragementand discouragement of email communication, blended the professional and personalrelationships, and often took place very late at night. Significantly, the emailexchanges with alters were "highly inappropriate and a deeply concerning set ofexchanges".65[130] In Allen, the Tribunal found that Ms Allen (a registered occupational therapist)was found to have breached the standards expected of a therapist in her position, byvirtue of the frequency, timing, duration, content and secrecy of the communicationsbetween her and the client.66 In that case there was, as Mr Waalkens notes, anundercurrent of sexualised interest between the client and the therapist.67[131] In Collie v Nursing Council of New Zealand, the nurse practitioner was chargedwith having accepted payments totalling $25,000 from their elderly patients.68Similarly, in Schlotjes, another case before the Tribunal, Ms Schlotjes (an occupationaltherapist) was named in powers of attorney for her client, in relation to propertymatters and personal care and welfare.69 For that she received a financial benefit of$5,000, and brought proceedings in the District Court attempting to enforce what wassaid to be a testamentary promise of the client for a further $25,000.[132] In contrast, one of the underlying themes of the PCC Report is that P had nomalicious intent or intent to achieve personal gain.[133] In any event, the cases cited by the respondent in this court were primarilyappeals from a Tribunal decision, rather than litigation relating directly to PCCdecisions, and so include a full examination of the merits, which is not appropriatehere.64 Le Roux 746/Psy15/313P at [181].65 At [196].66 Allen 27/OT05/14D.67 At [31].68 Collie v Nursing Council of New Zealand, above n 59.69 Schlotjes 446/OT11/187P.[134] Finally, on this point, even if the threshold for laying a charge with the Tribunalwere met, it is clear from all previous authorities that it is still a matter of judgementfor the PCC, on the particular facts and context.Conclusion[135] I am not satisfied that the PCC did not apply the correct legal test and threshold.Therefore I conclude that this was not a case of a fundamental, clear error allowingthe PCC's decision to be reopened. I find that the Board did not have the power todirect the PCC to reconsider its decision.Was the direction given to the PCC by the Board unlawful and/or improper?[136] For completeness, I also consider the second challenge raised by the applicant.[137] The applicant says that the 2 June 2022 direction given to the PCC wasunlawful and unreasonable.[138] The Board's position is that the direction was entirely appropriate: it wasconsistent with the Board's 14 April 2022 decision to direct the PCC to reconsider itsdecision and make a new decision.[139] The particular section of the direction to the PCC that P challenges is thestatement of the reasons for the direction:The central reason for the Board's decision was that the Board considered thatthe PCC made an error in that it failed to apply the correct legal tests forprofessional misconduct and the threshold for laying a charge before theTribunal in the unnumbered paragraph that immediately follows 5.1.3 on page13 [the conclusory paragraph set out at [60] above] of the report dated3 February 2022.[140] Counsel for P had suggested that this section should be amended to read:The central reason for the Board's decision was that it is not apparent whetherthe PCC applied the correct tests for professional misconduct and thethreshold for laying a charge before the Tribunal in the unnumbered paragraphthat immediately follows 5.1.3 on page 13 [the conclusory paragraph set outat [60] above] of the report dated 3 February 2022.[141] The Board says that it had decided that the PCC had, in fact, made an error oflaw by failing to apply the correct legal tests for professional misconduct and thethreshold for laying a charge before the Tribunal and therefore it did not consider itappropriate to direct the PCC that it was "not apparent" whether the PCC applied thecorrect tests.[142] The applicant argues that the direction given to the PCC was not, in fact, arequest to reconsider but instead a direction mandating it to issue a disciplinary charge.[143] The Board resists that allegation. It says the direction to the PCC is to take aseries of steps in order to reach a new decision under s 80(1) of the Act. It does notstate that the PCC is required to make a determination to lay a disciplinary charge. Itis open to the PCC to make any of the recommendations or determinationscontemplated in s 80(1). On the wording of the direction, the Board says, it is open tothe PCC to reach the same decision under s 80(1), provided that it applies the correctlegal tests in doing so.[144] The applicant also alleges that the Board's failure to provide guidance to thePCC on the content of the "correct" legal tests also makes it unlawful/unreasonable.Discussion[145] The redirection letter states that the Board had decided to "direct the PCC toreconsider the decision". It directs the PCC to "reach a new decision" and to "[m]akea new decision" and "provide an amended report". It directs certain steps to befollowed in order to "reach a new decision". The first step is to "reconsider itsdecision".[146] The second step is to undertake that reconsideration by applying:(a) The established legal tests as to professional misconduct under s100(1)(a) and (b) HPCAA. These are the tests set by the HealthPractitioners Disciplinary Tribunal and the courts when interpreting s100(1)(a) and (b) HPCAA.(b) The threshold for determining whether a charge should be laid beforethe Health Practitioners Disciplinary Tribunal.(c) The Board's Professional Conduct Committee Guidelines, inparticular, the decision making guidance in part D of Appendix D.[147] The primary emphasis in the redirection letter is the PCC's "decision", ratherthan the process by which it reached its decision. That emphasis is reinforced by thefact that the redirection letter does not set out what the "established legal tests" are.The decision that the letter focuses on was that a charge ought not be formulated forprofessional misconduct in the Tribunal, but that the Board review P's competence topractise their profession. The redirection requires a "new decision". The PCC mightreasonably have assumed this required it to reach a different decision.[148] It is in my view implicit in the Board's redirection that, if the PCC had appliedthe "correct" legal test, it would have determined that a charge be brought against Vbefore the Tribunal, under s 80(3)(b). The overall effect of the wording of theredirection letter would likely have led the PCC to believe that it was required by theBoard, not only to complete a further, amended process, but to reach a differentdecision. That of course would amount to acting under dictation and leaving the PCC'sfurther decision open to challenge.[149] I conclude that the proposed redirection was unlawful and improper.Relief[150] Given my finding that the Board was in error to conclude that the PCC hadapplied the wrong legal test and threshold, I make the following orders:(a) Quashing the respondent's decision requiring the PCC to reconsider thematter; and(b) Directing that the Board must reconsider the PCC's decision and musteither accept or reject the recommendation by the PCC that theapplicant's competence should be assessed by it.[151] The alternative relief sought, relating to the terms of the redirection, is notapplicable given my findings.Permanent name suppression[152] On 15 June 2022, by consent, this Court made an interim order prohibitingpublication of P's name and/or identifying details, pending further order of the Court.[153] P now seeks an order of permanent name suppression, regardless of theoutcome of this judicial review application. P's affidavit in support of the applicationfor permanent suppression notes that reputation is of particular importance for theirwork as a psychologist.[154] P also says that their forensic work and the neuropsychological assessmentsthey undertake are dependent on referrals, from current or previous clients,psychiatrists and other health professionals, lawyers and, at times, from the courtsdirectly. Those referrals depend on them maintaining a high reputation.[155] P is concerned that publicity of their name or identity in this case will create asignificant material risk of harming their reputation and, in turn, adversely affectingthe source of work upon which they are reliant.[156] P also notes a concern that publication of their name and details would createa risk of harm being caused to some of their clients.[157] Ms Courtney refers to s 95(2) of the Act, which provides the Tribunal with thejurisdiction to make orders prohibiting publication of a practitioner's name, even if thecase were to reach a disciplinary proceeding status. The Tribunal only needs to besatisfied that it is desirable to make the orders sought having regard to the interests ofany person, including the privacy of any complainant and to the public interest. Theword "desirable" sets a low threshold by comparison with that generally applicable inthe civil context.70[158] That has been reflected in a number of High Court cases cited by the applicant,including ABC v Complaints Assessment Committee,71 ANG v A Professional Conduct70 Johns v Director of Proceedings, above n 39, at [164], citing ABC v Complaints AssessmentCommittee [2012] NZHC 1901, [2012] NZAR 856 at [44].71 ABC v Complaints Assessment Committee, above n 70, at [44].Committee,72 Director of Proceedings v I,73 and most recently in XY v ProfessionalConduct Committee of Medical Council of New Zealand where Gendall J said:74 it is well-established the threshold test for an order for name suppressionin the medical practice disciplinary jurisdiction invokes a considerably lowerthreshold than the usual civil test. As it noted, the threshold test forsuppression simply requires that, to order suppression the Tribunal needs tobe "satisfied that it is desirable to do so".[159] Ms Courtney says given that position, if this matter were to proceed to theTribunal, it would significantly undermine the applicant's rights to seek and obtainname suppression if this Court did not make the order now sought.[160] The Board does not oppose the order sought by the applicant and will abide thedecision of the Court, but submits that any order of this Court should not impede thediscretion of the Tribunal in the exercise of its powers under s 95(2) of the Act, in theevent that a charge were to be laid before the Tribunal.[161] Having regard to the submissions of both parties I accept that it is appropriatethat an order be made in this Court permanently suppressing publication of P's nameand identifying details. I make this order under s 112 of the Act.[162] I accept that, if a disciplinary charge against P were to be laid in the Tribunal,it will be a matter for the Tribunal whether it makes a non-publication order unders 95(2) of the Act.Costs[163] The applicant has succeeded on both causes of action and is entitled to costs.I expect counsel to be able to agree costs, but if they are unable to do so, they shouldfile and serve memoranda within 15 working days of this judgment and I will decidethe issue on the papers.Gwyn J72 ANG v A Professional Conduct Committee [2016] NZHC 2949 at [15].73 Director of Proceedings v I [2004] NZAR 635 (HC) at [70]–[73].74 XY v Professional Conduct Committee, above n 60, at [138] (footnotes omitted).