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Marks v Director of Proceedings - Psychiatrist

Court of Appeal, 28 April 2009, [2009] 3 NZLR 108

On behalf of the parents of a man who died of self-inflicted injuries the Director of Proceedings brought a claim in the Human Rights Review Tribunal seeking a declaration of a breach of the Code by a consultant psychiatrist employed by the relevant DHB in providing health services to the son.  The claim also sought damages of $40,000 on account of humiliation, loss of dignity and injury to feelings suffered by the parents.  The central issue on appeal was whether the parents were aggrieved persons for the purposes of the Health and Disability Commissioner Act.

The Court of Appeal held that the term 'aggrieved person' in the HDC Act is intended to cover consumers who have rights under the Code: [60].

In other words, a proceeding will not normally be able to be brought on behalf of the spouse or family members of a consumer.

As the Court went on to say [61]:

"Further, we consider that there would be difficulties in defining which secondary victims can be aggrieved persons.  Ms McDonald was not able to be more precise in her definition than proposing that it would be a question of fact in each case but that such victims must have a connection to the primary victim greater than the public at large…  We suspect this test would encompass too large a group and would also risk not being interpreted in the same manner by differently constituted tribunals.  We also consider that there would be issues in determining what causal link is required between the breach of the Code and the situation of the secondary victim and then in deciding on when that causal link is proved.  Ensuring an appropriately close causal link between the breach of the Code and any damage suffered by secondary victims could risk narrowing the ambit of the HDC Act remedies for primary victims, contrary to the purpose of the Act… [T]here may also be conflicts between primary and secondary victims that are not resolved by the HDC Act."

5.   The Court did however, identify two caveats:

(i)                 Director of Proceedings v O'Neill [2001] NZAR59 (HC) is not overruled - fathers of babies in the course of pregnancy and the birth process may therefore be "derivative consumers in their own right and thus aggrieved persons under the HDC Act": [63].

(ii)               It would be "unsatisfactory if breaches of the Code with regard to deceased consumers remained without remedy": [65].  In those circumstances, executors or administrators would be claiming on behalf of the deceased consumer and not in their own right, and the Court appears to regard such claims as potentially open: [69].