UWE SEIDENFADEN V THE DIRECTOR OF PROCEEDINGS [2017] NZCA 267

UWE SEIDENFADEN V THE DIRECTOR OF PROCEEDINGS [2017] NZCA 267 [28 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA132/2017[2017] NZCA 267BETWEEN UWE SEIDENFADENApplicantAND THE DIRECTOR OF PROCEEDINGSRespondentHearing: 12 June 2017Court: Harrison, French and Cooper JJCounsel: A H Waalkens QC for ApplicantN J Wills and K M Eckersley for RespondentJudgment: 28 June 2017 at 10.15 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant is to pay the respondent costs as for a standard application for leave to appeal on a band A basis together with usual disbursements.C The orders granting continued name suppression and staying execution of the penalty judgment are cancelled.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] The applicant, Uwe Seidenfaden, applies for leave to appeal against two decisions of the High Court at Wellington. In the first, the substantive decision, Simon France J upheld an appeal by the respondent, the Director of Proceedings, against a decision of the Health Practitioners Disciplinary Tribunal dismissing a charge of professional misconduct against Dr Seidenfaden in his practice as an anaesthetist.1 Simon France J quashed the Tribunal's decision and substituted a finding of professional misconduct. In the second, the penalty decision, the Judge imposed a penalty on Dr Seidenfaden in the form of an order for censure, a fine of $9,000 and costs.2 The Director opposes Dr Seidenfaden's application for leave to appeal.[2] In order to obtain leave Dr Seidenfaden must show an arguable question or questions of law which either involves a matter of general or public importance or demonstrates that a miscarriage of justice has occurred or may occur if the appeal is not heard.3 Mr Waalkens QC for Dr Seidenfaden formulated a number of questions in the application for leave to appeal, but those which might possibly meet the statutory criterion were revised during argument. On the substantive decision the revised questions were whether the High Court erred in: (1) finding the charge ofmisconduct proved when the Tribunal's decision was based upon credibility findings adverse to the Director's witnesses; (2) failing to pay due and proper deference to the findings of an expert panel; and (3) finding that Dr Seidenfaden's breaches ofprofessional standards satisfied the statutory threshold of professional misconduct. The penalty decision is said to raise an arguable question of whether, assuming the charge was proved, the High Court either did not have jurisdiction to impose penalty or erred in exercising its jurisdiction to impose a penalty instead of referring the proceeding back to the Tribunal for that purpose.1 The Director of Proceedings v A [2016] NZHC 2299 [Substantive decision].2 The Director of Proceedings v Seidenfaden [2017] NZHC 390 [Penalty decision].3 Health Practitioners Competence Assurance Act 2003, s 113; and Criminal Procedure Act 2011, s 303.Background[3] On the morning of 15 February 2013 Ms P attended at hospital for what was planned to be a vaginal delivery of her baby. The birth did not progress for some hours. She was referred to a general surgeon, Dr K. An epidural block was administered by an anaesthetist who was then on duty but with the original expectation remaining of a vaginal delivery. Hourly infusions of ropivacaine followed to maintain analgesia.[4] A decision was made in the afternoon with Ms P's consent that the baby'sdelivery should proceed to a caesarean section. Dr Seidenfaden assumed responsibility for all anaesthetic aspects of the operation from that point on. He administered a second epidural, just under an hour after the first dose. He conducted an ice test to determine the level and effectiveness of the block. Dr K also checked its adequacy by pinching Ms P's skin with forceps.[5] Surgery commenced about an hour after Dr Seidenfaden had administered the second epidural. It was necessary for Dr K to conduct a uterine incision. Dr K'sevidence of the surgery before the Tribunal was that Ms P's abdominal muscles were "unyielding and very tight" and that, during the uterine incision, Ms P raised her knees and kicked Dr K. At Dr K's request Dr Seidenfaden administered a spray to relax the smooth muscle of the uterus. The baby was delivered safely. The incision and delivery stage was brief, of about four minutes in duration. During this time Dr Seidenfaden was situated in an area near Ms P's head, screened off from seeingMs P's surgical site from the chest downwards.[6] The post-delivery stage was longer, of at least 30 minutes. Dr K was required to suture the incisions and lift the uterus outside Ms P's body. She had to work quickly as the uterine incision had been extended by four centimetres and there was what was described as "brisk bleeding".The Tribunal decision[7] The genesis of the charge of professional misconduct was Ms P's claim thatshe experienced and communicated sensations of considerable pain throughout bothstages of the operation. The Director formulated three particulars of misconduct. All were dismissed by the Tribunal. The Director appealed to the High Court only against the Tribunal's dismissal of the second and third particulars, which were:(a) Dr Seidenfaden failed during the operation to appropriately observe and communicate with Ms P to ascertain her level of discomfort or pain. In particular, he failed to respond to Ms P's verbal complaints,her non-verbal indicators of pain, concern raised by others, her leg movement during delivery and her tight abdominal muscles (particular 2); and(b) Dr Seidenfaden failed to take adequate or proper steps to manage or alleviate Ms P's sensation of pain during the operation. In particular, he failed to appropriately discuss, offer or administer an epidural top up, nitrous-oxide gas, a local anaesthetic, Midazolam or another opioid, or a general anaesthetic (particular 3).[8] At the hearing the Director led evidence from Ms P and others who were present during the operation – her husband, Dr K, a lead and student midwife — as well as an anaesthetist expert, Dr Andrew Love. Dr Seidenfaden gave evidence in his own defence along with an expert, Dr David Jones.[9] The Tribunal's decision was comprehensive. What is material for present purposes is that the Tribunal apparently accepted:(a) the evidence given by Ms P and the four others who were present that Ms P was in pain throughout (expressed in the equivocal double negative language of "[t]hat is not to say that the Tribunal does not accept the evidence of [Ms P] as given by her or indeed the evidence of others as to what they may have seen or may have heard from [Ms P]"4);4 Re Seidenfaden HPDT Wellington 760/Med15/323D, 5 February 2016 at [136].(b) that during the four minute delivery period Ms P's legs, particularlyher left leg, were seen by others to be raised and Dr K requested Ms P to stop kicking her, as a result of which nursing assistants held her legs down;5(c) Ms P's pain was excruciating, she could hear exchanges between themidwife and Dr Seidenfaden about blood pressure and the midwife asking if Ms P needed more pain relief and she recalled Dr Seidenfaden saying that "it would be over soon anyway" inresponse to a request by a third party for pain relief for her;6(d) at some stage Dr Seidenfaden may have moved away from Ms P.7[10] The Tribunal found that Dr Seidenfaden's situational awareness was inadequate and fell below the appropriate standard in relation to Ms P's legmovements and tight abdominal muscles during the delivery phase.8 In particular, heshould have observed that Ms P's leg was raised, that Dr K asked Ms P to stop kicking her, for which Ms P apologised, and that Ms P's legs were then held down by the nursing assistants. However, this finding was insufficient to establish a charge of professional misconduct. While apparently accepting that Ms P may have been experiencing pain during the rest of the operation, which she communicated to her husband, the surgeon and the midwives, the Tribunal identified the critical question as being how much of Ms P's sensation of pain was communicated to or understood by Dr Seidenfaden as the anaesthetist.9 This formulation appeared contrary to the experts' consensus that one of the anaesthetist's primary functions was to besituationally aware of his or her patient by paying close attention throughout.[11] The Tribunal put some weight on the fact that, if Dr K had significantconcerns about Ms P's level of pain or discomfort, she could have stopped the procedure and requested Dr Seidenfaden to provide further analgesia and pain5 At [143].6 At [148].7 At [150].8 At [161].9 At [134].relief.10 It also accepted that Dr Seidenfaden may have moved away from Ms P to an extent but did not accept evidence that he sat uninterestedly in a corner, preferring instead Dr Seidenfaden's explanation that this would not accord with his usual practice.11[12] The Tribunal found that Ms P's complaint of pain was not conveyed to Dr Seidenfaden in a "sufficiently compelling way" for him to intervene.12 It therefore dismissed particular 2 on the ground of an insufficiency of evidence.13While it was not strictly necessary to deal with particular 3 because it was effectively contingent upon an affirmative finding on particular 2, the Tribunal found Dr Seidenfaden did not fall short of his professional obligations in not administering further pain relief.Substantive decisionHigh Court[13] In allowing the Director's appeal, Simon France J found that the Tribunal erred in its evaluation of the evidence. Its credibility assessment was flawed because, in a context where five witnesses gave specific and corroborated evidence which was at the heart of the charge, more was required than a general preference forone side's evidence over the others.14 A direct credibility finding was necessary if the evidence of the Director's witnesses was to be disregarded.15 Additionally, the Tribunal erred in accepting Dr Seidenfaden's evidence in the face of clear objective facts to the contrary16 and in placing decisive weight on his denials of critical events which were not based on his memory but on his reconstruction of how he might have reacted if he had followed his normal professional practice.[14] Simon France J carefully reviewed the relevant evidence before reaching his own conclusion that Ms P was clearly in pain throughout the operation and that she10 At [146].11 At [150].12 At [139].13 At [160].14 Substantive decision, above n 1, at [30].15 At [31] and [34].16 At [35]–[38].should not have been in that condition.17 He was satisfied that Dr K should have intervened but her failure was a result of her "very rigid perception of roles and functions".18 He was also satisfied that those in the room raised Ms P's plight withDr Seidenfaden. Their evidence was that he was dismissive or uninterested. Dr Seidenfaden's position was that there was no problem, leading Simon France J to conclude that Dr Seidenfaden had a strong and unjustified commitment to his initial assessment that no further pain relief was required.19[15] The Judge was satisfied that Dr Seidenfaden was not properly focussing on his task and missed the vital signs of pain of which he should have been aware. Dr Seidenfaden's failures went further than failing to recognise the two aspects of tight abdominal muscles and leg movement which the Tribunal accepted had occurred. The evidence not only disclosed a lack of Dr Seidenfaden's situational awareness, but also his lack of interest in and concern for his patient. His failure to explore with Ms P what she was experiencing, and to react to complaints raised by professional colleagues, was particularly culpable. Thus particular 2 was made out.20Consequentially, particular 3 was also made out; further pain relief was needed, the Tribunal accepted it was available, and it therefore should have been administered.21Analysis[16] Mr Waalkens properly acknowledged material defects and inconsistencies in the Tribunal's reasoning process. But he focused primarily on the Tribunal'sfindings to which, he said, Simon France J failed to pay appropriate deference. He characterised the findings as of an essentially clinical nature made by an expert body and, to the extent they were based upon credibility findings, they are immune from challenge. Accordingly, he says, the High Court erred in law allowing the Director'sappeal.[17] Mr Waalkens' argument cannot succeed for a number of reasons. The appeal proceeded by way of rehearing. The High Court in its appellate role was bound to17 At [40]–[44].18 At [48].19 At [52].20 At [62]–[64].21 At [70]–[79].consider the evidence afresh and substitute its own views where it considered that the Tribunal was wrong.22 Parties exercising their general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court even where it is an assessment of fact and degree. While the appellate court should where appropriate give proper weight to the advantages enjoyed by a first instance tribunal, such as on credibility and on facts within its own areas of expertise, it is not bound by the first instance findings if they are wrongly made.23[18] The Tribunal's threshold task was to adjudicate unequivocally on the credibility of the evidence of the various witnesses. As Ms Wills emphasises, the Tribunal did not reject the evidence given by Ms P and the other four people present in the operating theatre. It apparently accepted the thrust of their accounts that she was communicating serious pain throughout. Yet it also accepted the evidence of Dr Seidenfaden, which was not entirely consistent throughout the hearing process, to the contrary. In his brief Dr Seidenfaden was emphatic in his denials of the accounts given by Ms P and the others. However, at the hearing, his evidence shifted to an inability to remember the specific operation coupled with a reconstruction of what he would have done if certain events had occurred as alleged. This approach was encouraged by questions from the Tribunal.[19] In the result the Tribunal made no credibility finding, acting instead on the untenable basis of not rejecting and by implication accepting the Director's witnesses' evidence while nevertheless absolving Dr Seidenfaden on his hypothetical assertion that if the Director's witnesses were right about Ms P communicating serious pain he would not have acted as they said he did. That is not a logical foundation for a finding that the anaesthetist appropriately observed or communicated with his patient about her level of pain and discomfort when, as the Tribunal found, he was at times situationally unaware and when others in the same room observed Ms P's plight. Apparent acceptance of the Director's witnesses'evidence cannot be rationally reconciled with a conclusion that Dr Seidenfaden was unaware of what everybody else in the room saw and heard. Simon France J was22 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.23 At [5].right to determine that the Tribunal had to confront and resolve this conflict with adequate reasons for its finding.[20] Mr Waalkens' submission of error by Simon France J in failing to pay due deference to a specialist Tribunal's finding based on a clinical evaluation must also fail. The Tribunal's error was in failing to make adequate and reconcilable findings of fact. The deference argument is unavailable where the anaesthetist, who says he does not remember the events, does not purport to justify his inactivity as the result of exercising a clinical judgment. Dr Seidenfaden's reconstruction of the steps he would have taken if he remembered events cannot avail him.[21] Moreover, we agree with Ms Wills' submission that, apart from the errors which Simon France J identified, the Tribunal erred in asking itself the wrong question. Even if Dr Seidenfaden was entirely unaware of Ms P's pain, the critical question raised by the charge of professional misconduct was not whether or how much of Ms P's pain sensation was communicated to or understood by Dr Seidenfaden as the anaesthetist. The proper question was instead of an objective nature: whether Dr Seidenfaden ought to have been aware of Ms P's pain anddiscomfort during the operation. The Tribunal had itself cited McKenzie v Medical Practitioners Disciplinary Tribunal24 as authority for the principle that an objectiveassessment was required without taking account of the practitioner's subjectiveknowledge. The proper question was open to only one answer once the evidence ofthe Director's witnesses was accepted.[22] Mr Waalkens also submitted that the Judge erred in law in finding that Dr Seidenfaden's breaches of the appropriate standards satisfied the statutory threshold of professional misconduct.25 However, the Judge expressly addressed this question. He was satisfied that Dr Seidenfaden's sustained lack of attention was at the higher end of the scale for disciplinary sanction;26 that his failings brought discredit to the profession and merited disciplinary sanction as "a serious example of misconduct"; and that his failure to give further pain relief was both negligent and24 McKenzie v Medical Practitioners Disciplinary Tribunal [2004] NZAR 47 (HC), cited in Re Seidenfaden, above n 4, at [14].25 Under s 100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003.26 Substantive decision, above n 1, at [62].represented a serious departure from the standards rightly expected of medical specialist. The Judge found his misconduct "falls comfortably within its higherboundary for a disciplinary sanction".27[23] We can find no arguable error of law by Simon France J in his findings on particular 2. Nor is there any suggestion of a legal error in his consequential finding that Dr Seidenfaden failed to administer further pain relief which was available in the circumstances, thus satisfying particular 3.Penalty decisionJurisdiction[24] Mr Waalkens submitted that Simon France J erred in concluding that he had jurisdiction to determine penalty once he found the charge was proved instead of referring it back to the Tribunal for that purpose. His brief submission was that s 109(3) of the Health Practitioners Competence Assurance Act does not allow this course. However, we agree with Simon France J that the jurisdiction could not have been plainer.28 The High Court's broad powers are unequivocal; s 109(3) empowers the Court to both (a) "reverse or modify" the decision under appeal and (b) make "any other decision or order that the Tribunal could have made". The High Court'spower to reverse the Tribunal's decision on this charge is uncontested. And the decision to censure Dr Seidenfaden was one that the Tribunal could have made but did not. The High Court acted within its powers in making the decision to censure and impose fines.Wrongful decision[25] Mr Waalkens' related submission was that Simon France J exercised this power wrongly by failing to refer the issue of penalty back to the Tribunal in its specialist jurisdiction, thus depriving Dr Seidenfaden of what would otherwise be a right of appeal against penalty. We disagree. It was open to Simon France J to conclude that as the penalty was to be imposed on his findings, not those of the Tribunal, it would have been incorrect to require the Tribunal to reconvene its panel27 At [80].28 Penalty decision, above n 2, at [10].to assess penalty based on facts contrary to its own findings.29 Dr Seidenfaden has not in fact been prejudiced because this Court would have granted leave if it was satisfied that a miscarriage of justice may have occurred.[26] Mr Waalkens submitted before us that Dr Seidenfaden was deprived of the opportunity to argue that censure was inappropriate, that no fine should be imposed and costs should have been less. However, Mr Waalkens' submission overlooked critical passages in the penalty judgment confirming: (a) Mr Waalkens' apparentacceptance that a censure, fine and payment of a proportion of costs were appropriate to mark Dr Seidenfaden's wrongdoing;30 and (b) the Judge's acceptance ofMr Waalkens' submissions in imposing a penalty which "largely reflects his suggested position",31 rejecting the Director's proposition that a suspension wasappropriate.32Result[27] The application for leave to appeal is declined.[28] Dr Seidenfaden must pay the Director costs as for a standard application for leave to appeal on a band A basis together with usual disbursements.[29] Simon France J granted Dr Seidenfaden interim name suppression for 21 days from the date of the penalty judgment on 9 March 2017.33 When applying for leave to appeal to this Court, Dr Seidenfaden applied for orders continuing name suppression and staying the execution of the penalty judgment. By consent, Randerson J granted these orders until further order of this Court. Having declined the application for leave to appeal, and without any further applications being made before us, we cancel the orders granting continued name suppression and staying execution of the penalty judgment.Solicitors:DLA Piper, Wellington for Applicant29 At [15].30 At [27].31 At [30].32 At [31].33 At [41].