Criminal allegations in disciplinary cases involving health practitioners

Recently the Supreme Court of New Zealand decided that the standard of proof in disciplinary proceedings against a registered health practitioner is the ordinary, civil "balance of probabilities" standard, even in cases where criminal or serious allegations are made. Adopting recent House of Lords' case law, it rejected the existence of a third standard of proof, the "flexible" or "heightened" civil standard commensurate with the seriousness of the issue involved. Neither did the court consider direct application of the criminal, "beyond reasonable doubt" standard appropriate in disciplinary proceedings. Secondly, the court adopted a new principle that it is an abuse of process to bring a disciplinary charge against a practitioner, which is the same or substantially the same as that which he or she faced in the criminal proceedings and which resulted in an acquittal. It is not, however, an abuse to bring disciplinary charges after a criminal acquittal based on the same conduct, providing the disciplinary charges address wider aspects of the practitioner's conduct. The court was split on both issues. This column analyses the decision, supporting it on the first issue, but not the second.