Let’s talk about………[name suppressed]

Catey Boyce and Anita Miller

What (if anything) can you do if you hear that a health professional that you employ has been convicted of a criminal offence but has been given ‘name suppression’?

What are your responsibilities if you are a regulator of health professionals and you get tipped off that a practitioner is facing criminal offences that are directly relevant to the practice of the profession but ‘all identifiable information is suppressed’?

What about the ethical responsibilities many health professionals have not to ignore conduct that might impact on the safe delivery of health services? How does that fit with a court order suppressing the professional’s name?

The Supreme Court has recently provided some guidance. For those in the health sector grappling with these issues, here’s what you need to know.

Suppression orders and what they mean

First, a brief rundown of criminal name suppression orders and what these mean. If a court makes an order “forbidding publication” of details relating to a person connected to criminal proceedings, then nobody can publish the suppressed details without first getting permission from the court. It’s not just a matter of keeping a person’s name out of the local paper though, publication of other details (like the place where they work or even the town where they live) can also be captured by the suppression order. Breaching a suppression order (even if that is accidental) can lead to hefty fines or even in some cases up to 6 months’ imprisonment.

Given the potentially severe consequences here, the Supreme Court’s guidance about what people ‘in the know’ can (or cannot) say about matters that have been suppressed will be reassuring. And, although decided in the context of a criminal suppression order, we think this guidance readily applies to other types of suppression orders, like those made by the Health Practitioners Disciplinary Tribunal.

So, what did the Supreme Court say about suppression orders?

The case in question, ASG v Harlene Hayne, Vice-Chancellor of the University of Otago, looked at what it means to “publish” suppressed details in the context of an employment relationship.

The background facts are relatively straightforward. A security officer who worked for the University of Otago’s Campus Watch team was arrested and charged with assaulting a female and wilful damage. He was discharged without conviction, in part because the judge was concerned about the implications of a conviction to the man’s employment. He was also granted name suppression.

As it happened, a senior staff member of the University had been tipped off about the security guard’s pending charges, and was sitting in the public gallery watching events unfold. After seeking legal advice, he reported the details of what he heard to the University’s HR team. An employment investigation followed, resulting in a temporary suspension and a final written warning.

Clearly miffed by what he considered to be a breach of the suppression order, the security guard challenged the lawfulness of the University’s disciplinary actions. Like the courts before it, the Supreme Court rejected the challenge. Relevantly, it found that although ‘publication’ of suppressed information includes “word of mouth” communications, it is not unlawful to disseminate the information to persons with an “objectively established genuine need to know the information”.

In this case, it was clear the University had a genuine interest in knowing about the violence-related criminal charges faced by the employee, given the employee’s role in helping to protect students.

What does it all mean?

Consider the following scenario. A practitioner has been charged with a criminal offence – let’s say, fraud in the workplace. Coincidentally, a staff member of the practitioner’s regulatory body is present in court on another matter and learns that the practitioner has been discharged without conviction and given name suppression. Can the staff member report back to the responsible authority about the outcome of the hearing?

The key question for the staff member to ask themselves is whether the authority has an “objectively established genuine need” to know. The short answer is likely to be ‘yes’. The authority has statutory obligations to assure itself of the practitioner’s competence and fitness to practise, and to protect the public from harm. It therefore has a genuine interest in knowing the outcome of criminal proceedings involving practitioners for whom it is responsible.

But, is it really that simple?

No – there are some other things to bear in mind.

The first point is that it doesn’t matter if the information is conveyed orally or in writing (including email) – both are forms of ‘publication’. However, wherever possible it is wise to avoid emailing information containing suppressed information – in large part because emails can be difficult to control.

The second point is that once in receipt of personal information about someone else, a range of privacy obligations relating to the collection, use and disclosure of that information can then apply. This includes the need to ensure the accuracy of information before using it.

Finally, when thinking about who really ‘needs to know’ about matters that are suppressed, it’s important to ensure the net is cast no wider than is strictly necessary. In some cases, this will be relatively clear – for example, if a person has a legal obligation to disclose information to an easily identifiable person or regulatory body. In other cases, the question of who else could (or should) information be disclosed to isn’t quite as simple. What if the person you tell then tells others about what they’ve heard? Doesn’t that undermine the whole purpose of the suppression order? There is still room for considerable uncertainty, and in many cases it may be best to get advice – let’s not forget the very serious consequences of breaching a suppression order, and that a practitioner’s reputation or job may also be at stake.

For further information contact one of the authors –  Catey Boyce or Anita Miller.

Catey Boyce
DDI:  04 550 5726
Email:  catey.boyce@clarolaw.co.nz

Anita Miller
DDI: 04 550 5357
Email: anita.miller@clarolaw.co.nz

This article is intended to provide a summary of the subject covered only and is necessarily general and brief. It is not intended as legal advice and nothing in the article should be relied upon without getting specific professional advice.