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Z v Dental Complaints Assessment Committee [2008] NZSC 55, 25 July 2008

Court: Supreme Court
Judgment: 25 July 2008
Neutral: [2008] NZSC 55

Areas of law

Professional Discipline - Dentists - Judicial Review - Abuse of Process - Standard of Proof - Double Jeopardy

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Judgment analysis

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Facts

In 2002, the appellant dentist was acquitted in a criminal trial on charges of indecently assaulting three female patients during treatment. Following the acquittal, these three patients, along with a fourth patient whose complaint had not led to criminal charges, made complaints to the Dental Council. The complaints were referred to the respondent Committee, which investigated and decided to refer charges to the Dentists Disciplinary Tribunal. The charges alleged professional misconduct and acts detrimental to patient welfare, based on the same allegations of indecent assault from the criminal trial, the further allegation, and allegations of administering excessive doses of sedatives. The appellant sought judicial review in the High Court to prevent the disciplinary proceedings from continuing, arguing they constituted an abuse of process. He was unsuccessful in the High Court and the Court of Appeal, leading to this appeal to the Supreme Court.

Held

The standard of proof in professional disciplinary proceedings under the Dental Act 1988 is the civil standard of proof on the balance of probabilities, which is applied flexibly to require more cogent evidence for more serious allegations.
It is not an abuse of process for a disciplinary body to inquire into conduct that was the subject of a criminal acquittal where the disciplinary proceedings have a different statutory purpose (public protection) and a wider scope than the criminal trial (e.g., examining associated professional practices).
It is an abuse of the disciplinary power to refer a charge that is in all respects identical to a criminal charge of which the practitioner has been acquitted, where that allegation is not 'inescapably bound up with' other legitimate issues of professional practice being considered by the disciplinary body.

Elias CJ dissenting; Anderson J concurring in part and dissenting in part.

The appeal is allowed to the extent that the allegation of professional misconduct in 1987 is not to form part of the charge heard by the Tribunal. In all other respects the appeal is dismissed.

Key passages2

The standard of proof in civil proceedings is the balance of probabilities, meaning the tribunal must feel an actual persuasion of the fact's occurrence to its reasonable satisfaction. The seriousness of an allegation and gravity of the consequences are considerations that affect whether this satisfaction is reached.

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

An allegation of abuse of process in a public law context is a complaint that discretionary power has been exercised outside the scope of the authority conferred by Parliament, or for a purpose for which the power was not conferred.

“An allegation of abuse of process in the public law context is in essence a complaint that discretionary power has been exercised in a way which falls outside the scope of the authority conferred by Parliament, or for a purpose for which the power was not conferred.”

Cases mentioned in judgment

Briginshaw v Briginshaw (1938) 60 CLR 336
Applied
Campbell v Hamlet [2005] 3 All ER 1116 (PC)
Daniels v Thompson [1998] 3 NZLR 22
Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513
F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774
Fox v Attorney-General [2002] 3 NZLR 62
Guy v Medical Council of New Zealand [1995] NZAR 67
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Applied
Johnson v Gore Wood & Co [2002] 2 AC 1
Applied
Lai v Chamberlains [2007] 1 NZLR 7
Distinguished
McAllister v General Medical Council [1993] 1 AC 388
Moevao v Department of Labour [1980] 1 NZLR 464
R (McCann) v Crown Court at Manchester [2003] 1 AC 787
R (Redgrave) v Commissioner of the Police of the Metropolis [2003] 1 WLR 1136
Applied
Re a Medical Practitioner [1959] NZLR 784
Followed
Re B (Children) (Care Proceedings: Standard of Proof) [2008] 3 WLR 1
Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563
Applied
Re Winship (1969) US 358
Rookes v Barnard [1964] AC 1129
Sadler v General Medical Council [2003] 1 WLR 2259 (PC)
W v W [1999] 2 NZLR 1
Ziderman v General Dental Council [1976] 1 WLR 330

Legislation mentioned

Dental Act 1988, s 45, s 52, s 53, s 54, s 54(1)(a), s 54(1)(b), s 54(1)(c), s 55, s 55(1), s 55(2), s 55(3), s 56, s 60, s 61, s 63
New Zealand Bill of Rights Act 1990, s 26(2)
Health Practitioners Competence Assurance Act 2003, s 216
Commissions of Inquiry Act 1908, s 4B, s 4C, s 4D
Injury Prevention, Rehabilitation, and Compensation Act 2001, s 319
Judicature Amendment Act 1972