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Unhealthy secrecy?

By Steven | March 20, 2013

A hard call

Was the coroner right to suppress the names of the health care workers involved in the tragic death of Zachary Gravatt of menigicoccal disease in 2009? After all, he found the hospital was swamped with swine flu victims and Zachary’s symptoms were very similar. He was given considerable care and attention, and the disease was identified within five hours of his arrival at hospital. But it was too late.

The coroner said there were errors, but they were systemic ones; individuals weren’t at fault. He said that naming the health care workers would “effectively be punishing individuals for an overwhelmed and overstressed system”. It would “set an extremely dangerous precedent for future media coverage” and “serve to discourage good health professional from seeking employment and experience in the New Zealand Health system. It has the potential to seriously undermine confidence in the health system as well.” He noted the importance of free speech, but pointed out the the health board was making the necessary changes to the system and that his findings could still be publicly understood and debated without the names.

Some points of interest

There are lots of interesting things about this. First: he surely makes some good points. Do we really need to know the names for the public interest to be served? Don’t the workers have some entitlement to privacy? Isn’t it true that they are likely to suffer if publicly named? Shouldn’t we pity them rather than put them in the pillory?

Second, the coroner’s reasoning didn’t have much to do with the things that are being raised in the debate about this case. It was not based on any notion that health care workers would not be free and frank when tragic incidents like this were investigated. This is surely right. In this case anyway, the relevant staff would easily have been identified if only from the paperwork generated during Zachary’s care, and there’s no suggestion that they were less than forthcoming in their contribution to the inquest. Nor was the suppression decision based on any prediction that the news coverage would itself be inaccurate or unfair – rather that the mere publicity would be unfair.

Third, I think he goes a bit far. Will this really stop people from becoming nurses and doctors? How exactly might naming these people undermine confidence in the health system? What precedent is being set except that people in the news can generally be named?

The High Court overturns the suppression

Justice Whata made some of these points in overturning the coroner’s suppression decision. He pointed out that the coroner could only suppress names “if satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so” (s74 of the Coroners Act). He noted that the right to freedom of expression and the principle of open justice were in play.

The general approach to restricting rights 

In an important general statement, he set out the proper approach to reconciling these interests. If free expression is at stake, there must be express statutory permission to suppress. (He may be overlooking some common law powers of suppression here, but perhaps he was focusing on the case at hand). Next, that statutory power must be interpreted and exercised consistently with freedom of expression. In other words, when working out the scope of the power to suppress, free speech must be factored in. Wide suppression powers must be read narrowly if necessary to prevent unjustified restrictions on speech. This is about the legal meaning attached to the power of suppression. (This is really no more than section 6 of the Bill of Rights requires).

Third, “even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified.” So even where there’s a power to suppress, the jugde must weigh up the benefits to society against the harms to free speech in the particular case. This is what section 5 of the Bill of Rights requires.

I think this is to be welcomed: judges don’t always accept that free speech requires this dual approach. How do we interpret the power? Then: how do we apply the power? A restriction on free speech that falls within the scope of a wide discretionary power but produces an outcome that cannot be demonstrably justified is unlawful. (Admittedly, these questions can be difficult to separate sometimes).

The law applied

Justice Whata then rightly looks at the legal grounds available to the coroner: public order, privacy, the interests of justice and decency. Decency plainly isn’t a starter, so he examines the others, each of which was relied on by the coroner.

Public order in this context couldn’t include some generalised concern or fear that other health professionals might be deterred from participating in the health system.

The interests of justice might include reputational impacts (I’m not so sure about that one), but the coroner’s report didn’t impugn the workers’ character or reputation: “the latent potential for unfair media criticism is too opaque a basis to derograte from freedom of speech on interest of justice grounds.”

Personal privacy must relate to reasonable expectations of privacy, and that doesn’t usually include the names and roles of officials.

He concludes that suppression can’t be approached in a broad brush way. “The relevant factors weighing for and against publication must be assessed on a fine grained basis, so that here is surety that the statutory grounds for suppression are present, and that the principles applicable have been applied appropriately and the proper balancing exercise has been undertaken.”

An ongoing theme?

Here we see what’s likely to be an increasing theme in Bill of Rights jurisprudence: judges taking this question of whether a restriction on a right is justified, and turning it into a methodology. Has the original decision-maker weighed up the relevant factors, applied the right principles, asked the right questions? If so, then a judge on review is unlikely to substitute his or her judgement about whether that restriction was reasonable and demonstrably justified.

I’m not sure this is inappropriate, particularly when the initial decision maker (such as a tribunal) has some particular expertise. But it is in tension with recent UK Supreme Court authority in the Denbigh High case, which says that a decision is either a disproportionate or it’s not, and a judge on appeal or review must exercise his or her own judgement about it. That also seems to be the view of our own Chief Justice in the Morse case.

I’m sure the last chapter on this question has not been written. But it may have an extremely important impact on how much bite the Bill of Rights has.

Topics: NZ Bill of Rights Act, Suppression orders | 38 Comments »

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