Z v Dental Complaints Assessment Committee [2008] NZSC 55 is an important case which considers in depth just how quasi-criminal professional discipline proceedings should be. It is a decision of New Zealand’s Supreme Court, their equivalent of our High Court, now 6 years old. It considers the disciplinary prosecution of a dentist, acquitted of sexually assaulting sedated patients, against whom disciplinary proceedings were brought in respect of the same conduct as was the subject of the criminal charges. That the rule against double jeopardy (i.e. the doctrine of autrefois acquit) had no operation was accepted by the dentist. But he argued that the disciplinary proceedings were an abuse of process. Four of the five judges agreed with him in relation to one only of the particulars of professional misconduct, while one judge said even that should be allowed to go ahead. One of the four judges, Chief Justice Elias, held that all of the particulars of misconduct were an abuse of process. The second issue was what standard of proof these disciplinary charges had to be established to. All but the Chief Justice held that the appropriate standard was the civil standard informed by what we would call the Briginshaw principles. The Chief Justice, however, argued persuasively in favour of the imposition of the criminal standard in serious professional disciplinary proceedings.
A male dentist was charged with, tried for, and acquitted in 2002 of crimes involving drugging and sexually assaulting female patients. One complainant alleged that the dentist had, during treatment in 1987, pressed his penis against her hand. The second complainant alleged that during treatment in 1989 he had placed her hand on his penis. The third complainant made two allegations of assault by the dentist during treatment in 2001. She said that he had touched her clothed breast. On the same occasion he had allegedly placed her hand on his penis. The second and third complainants said they had been sedated for the purposes of treatment by the dentist at the time of the alleged indecent assaults. See [83]. Hypnovel and valium were used. Sexual hallucinations are a known side effect of those drugs, and they may create amnesia too: [87].
Following the acquittals, the police helped the women to make complaints to the dentist’s professional regulator.
The disciplinary body investigated the complaints. It professed to be concerned by the stand-alone issue of the level of sedation administered. It decided that the alleged sexual assaults, being inextricably bound up with that issue, should not be excluded from the disciplinary charge it determined to bring solely because the dentist had already been acquitted of charges in respect of those alleged assaults: [87].
In the case of the alleged sexual assault victim who was not sedated, the disciplinary charge was precisely co-extensive with the criminal charge. In the case of those who were sedated, the charge was that a higher than recommended dose of the sedative was administered, with various consequences, including the risk of being sexually assaulted: [89]ff. The charges were poorly drawn and are described in detail best by the Chief Justice, at [14]ff. The worst aspect was struck out below and not in issue in the Supreme Court. Chief Justice Elias made clear at [24], under the heading ‘Unpacking the Charges’ that though there were other particulars of professional misconduct not a feature of the criminal trial, the allegations of sexual assault were self-contained aspects of the disciplinary case:
‘Each particular is said separately to amount to professional misconduct or acts endangering patient welfare. Although, therefore, the indecent assaults are in form expressed to be “undesirable … consequences” of the administration of high dosages of sedatives in relation to three of the complainants, they are themselves the basis of stand alone claims of professional misconduct.’
I agree with her Honour, and consider that the majority erred in not undertaking the same analysis. Indeed, her Honour’s dissenting judgment is pure class, stripping away with analysis from first principles the tosh behind mantras which have encrusted themselves onto the law of professional discipline by force of over-repetition. It is not the last we will hear of her views.
In the Supreme Court, the dentist did not contend that the disciplinary charges were bad on the basis of the criminal equivalent of res judicata, autrefois acquit: [122] That is apparently the effect of Re a Medical Practitioner [1959] NZLR 784 at 801, Daniels v Thompson [1998] 3 NZLR 22, R (on the Application of Phillips) v General Medical Council 82 BMLR 135 (QB), and R (Redgrave) v Commissioner of Police of the Metropolis [2003] 1 WLR 1136 (CA) reaffirmed by the plurality at [122]. Rather, he said the disciplinary proceedings represented an abuse of process for collaterally attacking the acquittals: [119]ff. I find this a strange contention: either autrefois acquit operates, or it does not. If it does not, it cannot be an abuse of process to bring a disciplinary charge exactly the same allegations which gave rise to a criminal acquittal. Otherwise, autrefois acquit in fact operates, but under the new name ‘abuse of process’. But no one else seems to have analysed things according to my way of seeing.
The Dental Act itself provided some consideration of the inter-relationship of criminal convictions and findings of professional misconduct. Three species of conduct warranting discipline were articulated in the Act (see [10]):
- conviction of a crime punishable by at least 3 years’ imprisonment where “the circumstances of the offence reflect adversely on the practitioner’s fitness to practise”;
- conduct detrimental to patient health; and
- ‘professional misconduct’.
And the disciplinary tribunal did not have power to fine a practitioner, which power it otherwise did have, if a disciplinary charge was made out where the subject matter was the commission of an offence for which the practitioner had been found guilty by a criminal court: [81].
The plurality held that the disciplinary proceedings were not an abuse of process because the scope of a disciplinary inquiry is different from the scope of a criminal trial, because the purposes of criminal and disciplinary prosecution are different. The crucial difference, their Honours said, was that disciplinary proceedings are for the protection of the public. I do not find the reasoning cogent, either as generally described in this paragraph or the detailed argument at [125]ff. Particularly is that so when their Honours acknowledged that:
‘[133] Nevertheless, there will be some situations in which it would be an abuse of a Complaints Assessment Committee’s discretionary power to refer allegations of aberrant conduct by a practitioner to the Tribunal because the scope of a disciplinary inquiry would simply replicate the exercise that a criminal court has undertaken, where that process has resulted in an acquittal. Bodies such as the respondent must be careful not to permit their processes to be used simply as a reserve means of punishing conduct of a criminal nature after criminal proceedings have been unsuccessful.[198] Subject to one qualification, that is not, however, the present case.
[198] This was recognised in R (Redgrave) v Commissioner of the Police of the Metropolis [2003] 1 WLR 1136, at para [46] (CA).’
The alleged sexual assault which did not involve sedation was, accordingly, an abuse of process, and was struck from the charge: [134]. In relation to the allegations of sexual assault which did involve sedation, however, the plurality bought the disciplinary body’s argument that the assaults and the over-sedation were inextricably bound up with one another, saying at [138]:
‘It would be unsatisfactory if allegations of over-sedation had to be considered in isolation from possible motives. The alleged conduct could also be relevant to whether any over-sedation established was negligent or deliberate. These points support the respondent’s conclusion that what it should refer to the Tribunal should include the allegations concerned.’
Justice Anderson agreed with the plurality, except in relation to the particular of professional misconduct based on the allegation of sexual assault that did not involve sedation. His Honour found nothing wrong in re-running in a civil trial exactly the allegations of which the dentist had been acquitted in a criminal trial.
Chief Justice Elias, in dissent, found that the proceedings were an abuse of process, at [56]:
‘I consider that the decision of the Complaints Assessment Committee referring the indecent assault charges to the Dentists Disciplinary Tribunal was, as claimed by the appellant, unreasonable. On the view I take, the result is inconsistent with values which are fundamental to the legal system. The claimed error of unreasonableness might equally have been a claim of unfairness or one of exceeding the scope of the statutory authority. Such error is properly corrected as abuse of power in which latitude in the discretion to lay charges is not appropriate. The abuse of power in relation to the charges of indecent assault does not affect the distinct charges of overuse of sedatives. The determination of the sedation charges turns on professional conduct issues, not criminal ones already resolved by the verdicts in the criminal trial or more properly determined through that process. But my conclusion in relation to the indecencies is that it was an abuse of power for the Complaints Assessment Committee to bring charges which do not extend beyond the elements of criminal offences in respect of which the dentist has been acquitted. I also consider that it was an abuse of power for the Complaints Assessment Committee to lay a charge, not determined by a criminal court, which constitutes a crime. I do not suggest that disciplinary charges in these circumstances will always be an abuse of power. But I think without adequate justification they will usually be so. No adequate justification in my view is put forward here. In most cases, the two offences – the crime and the professional misconduct – will not be identical. In that case, there may be no abuse in the additional disciplinary charges, particularly if they are directed at conduct which is not sufficient for the crime but is sufficient to establish professional misconduct. In the present case, however, I consider that the criminal and professional charges are indistinguishable in substance. There is no professional misconduct unless the crimes of which the appellant was acquitted and a further crime, not yet considered by a criminal court, are established to the satisfaction of the Tribunal. The position is very different from that envisaged by the statute where a disciplinary tribunal proceeds on the basis of a conviction. There the facts constituting a crime will have been established in a preceding criminal trial.’
At [68], the Chief Justice said:
‘[68] The general instinct that criminal culpability should be ascertained through the processes of the criminal law is sound. Civil claims by private litigants are not excluded by the principle, for the reasons described by Thomas J in Daniels v Thompson. But I think the position is quite different when determination of culpability for a crime and consequential imposition of penalties is undertaken by administrative processes with the authority of the state. In such cases, there must be compelling reason to bypass or second-guess the criminal law processes. The reasons are not only based on the protection of the individual, but on the public interest in the integrity of the criminal justice system as the proper and safe means of authoritatively ascertaining responsibility for crimes. If a parallel system is allowed to develop in disciplinary proceedings, it could undermine the primary process. And once the criminal process has been completed “in accordance with the rule of law and established procedures”, I agree with Henry J that it would “require compelling reasons for not treating it as determinative in the overall interests of justice”.’
