A recent case of a general practitioner being named in the media regarding their involvement in treating a child who tragically died in Kaikōura has caused a lot of concern in the GP community.
We have collated some information and sought advice on name suppression, and what you can do to protect yourself in similar circumstances.
What happened in Kaikōura
The HDC decision did not name the GP who treated the girl, but found that there were “systemic and individual deficiencies in care and support provided”.
General Practitioners Aoteaora (GPA) disagrees with some of the fundamental findings and recommendations in this decision, but that is a story for another day.
So how did the doctor’s name appear in the newspaper? There are many ways a reporter might find out the doctor’s name, and there is no suggestion that anything underhanded went on.
It is possible this case was already known to the media before the decision was published.
GPA has reached out to the reporter to explain our position that the publication of this name likely had a traumatic effect on this community doctor. We explained that it caused concern and fear among hard-working GPs trying to do their best in an increasingly pressurised system.
We also offered additional context around the story.
Name suppression is not automatic
In New Zealand, the default is that the media, or anyone else, can name anyone. This is an important part of open justice, but can lead to the media having to make their own moral judgements about whether or not to publish a name.
The media’s default position is that if they know a name involved with a case, they will publish it. The media sees itself as a historical “first draft”, and wants to include information that they see as pertinent.
Name suppression is only granted automatically in very rare legal cases, usually those involving minors or victims of sexual assault.
Applying for name suppression
It is possible to apply for name suppression under certain circumstances for defendants in legal cases. Those cases are when the court is satisfied that publication would be likely to:
- cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person;
- cast suspicion on another person that may cause undue hardship to that person;
- cause undue hardship to any victim of the offence;
- create a real risk of prejudice to a fair trial;
- endanger the safety of any person;
- lead to the identification of another person whose name is suppressed by order or by law;
- prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
- prejudice the security or defence of New Zealand.
It is rare for courts to grant name suppression.
Many people rightly believe that publishing their name will cause extreme hardship, but the bar is very high for the courts to agree.
Importantly, if someone’s name is published before name suppression is granted, it makes it less likely that a court will grant suppression because the name is already in the public domain. The defendant’s lawyers should apply for name suppression as early as possible if they believe the defendant (or witness) is eligible.
Naming and the HDC
Remember, though, that the HDC is not a court, and does not have the same rules and guidelines as the legal system.
The HDC has its own Naming Policy, and usually chooses not to name doctors involved in decisions (though it will often publish identifying factors such as location).
The policy states:
“Unlike a court or tribunal, the Commissioner has no legal power to order name suppression, so it is always possible for parties to an investigation to put names in the public arena subject to relevant legal publication restrictions.”
What does this mean for doctors?
Unfortunately, there is little you can do to prevent your name being published in connection with an HDC decision.
Most journalists will offer you a “right to respond” before publishing your name in connection with anything negative. It is your decision whether you take this opportunity.
If you are uncomfortable with speaking to the media, GP Aotearoa is happy to contact journalists on behalf of members to provide context around a story. Get in touch with us confidentially at info@gpaotearoa.co.nz.