Psychiatrist wins appeal over claim for damages

A psychiatrist whose patient died after an attempted suicide has won an appeal against a High Court decision allowing the dead man's parents to sue him for damages.

Dr John Marks' case will now return to the Human Rights Review Tribunal to be determined, according to a Court of Appeal judgment released today.

Dr Marks was employed by Capital and Coast District Health Board in Wellington when he began treating the 31-year-old man in early 1999.

Eight months later, the man died of self-inflicted injuries.

In 2005, the Medical Practitioners Disciplinary Tribunal found Dr Marks guilty of professional misconduct.

On behalf of the man's parents, the Director of Health and Disability Proceedings brought a claim under the Health and Disability Commissioner Act.

The claim in the Human Rights Review Tribunal sought damages of $40,000 for humiliation, loss of dignity and injury to feelings suffered by the man's parents.

Dr Marks applied to strike out the claim on the grounds that the tribunal had no jurisdiction to award damages to the parents, who were not consumers of his health services.

Under the Act, anyone can make a complaint, but only an "aggrieved person" can be awarded damages, and Dr Marks maintained that the parents were not aggrieved persons.

The tribunal dismissed his strike-out application and a judicial review of that decision also went against him.

However, three Court of Appeal judges held that only those with rights under the health and disability services code could be aggrieved persons under the Act.

Justices Susan Glazebrook, Terence Arnold and David Baragwanath, in a written decision, said the Act did not define "aggrieved person", which was usually a term of wide import.

But they also said an examination of the detailed provisions of the Act favoured Dr Marks' position that term was intended to cover consumers with rights under the code.

"Further, we consider that there would be difficulties in defining which secondary victims can be aggrieved persons."

Dr Marks' lawyer, Chris Hodson, QC, had submitted to the court that there was nothing to suggest Parliament had intended a change to the common law position of secondary victims.

Enabling people other than consumers under the code to recover damages would lead to a flood of claims and create conflicting duties for health practitioners, he said.

For the director, Kristy McDonald, QC, said the words "aggrieved person" should not be interpreted in too restrictive a manner.

She said there was nothing to suggest that Parliament meant the phrase to be given anything other than its ordinary meaning.

-NZPA