Court doubles costs award to suspended psychiatrist

By MATHEW DEARNALEY

A hospital psychiatrist who sold a family home to clear his name of misconduct allegations has been awarded costs of more than $180,000 by the Court of Appeal.

This is almost double a sum of $92,868 that child and adolescent psychiatrist Dr Allan Binnie initially won in costs in the Employment Court from the Bay of Plenty District Health Board's predecessor, Pacific Health Ltd.

It is also on top of damages of $71,300 that Judge Graeme Colgan earlier awarded Dr Binnie, who now works in New Plymouth, after finding the Tauranga Crown health enterprise's treatment of him "so flagrant and outrageous" as to warrant punishment.

Included in the award was a rare exemplary damages sum of $10,000 to reflect what the judge said were aggravating features of Pacific Health's conduct, starting with its summary suspension of Dr Binnie in 1999 without seeking advice from its own clinical leaders.

But the 61-year-old psychiatrist went to the Court of Appeal for more money to pay a legal bill of $213,262 from an eight-day hearing and considerable pre-trial activity.

This followed his sale on a depressed market of a former family home in Dunedin that he had hoped to re-occupy eventually, and what he regarded as the indignity of having to borrow money from his children.

The Appeal Court, in a decision delivered by Justice Andrew Tipping, has now ordered the health board to pay Dr Binnie costs of $180,446 after ruling that the employment judge misdirected himself by placing a mandatory limit on his award.

Justice Tipping said such a cap was inappropriate because the board's insistence that any out-of-court settlement be kept confidential forced Dr Binnie to sue it to mitigate damage to his reputation.

"Pacific Health's insistence on trying to keep its outrageous conduct out of the public arena can only have exacerbated that damage," he said.

Dr Binnie was eventually reinstated after an inquiry by two independent psychiatrists found no substance to allegations that he had mistreated two patients at Tauranga Hospital.

But he had spent months stripped of clinical duties and physically isolated from colleagues, and resigned soon after to take up his present position at Taranaki Base Hospital.

Judge Colgan said Dr Binnie's new employer asked him to supply more references after being advised by Pacific Health chief executive Ron Dunham to check his credentials carefully.

Mr Dunham, who remains chief executive of the Bay of Plenty board, denied this yesterday.

"Contact between chief executive officers occurs all the time but the subject of Dr Binnie didn't come up," he told the Herald.

Board human resources manager Lynda Wallace, who was criticised by Judge Colgan for showing no apparent insight into the consequences to Dr Binnie of an unlawful suspension, said she had no immediate comment.

The judge said Ms Wallace recommended that Dr Binnie be suspended without consulting Pacific Health's chief medical adviser, and she later dismissed a union complaint as " a doozey", while suggesting that Dr Binnie was not a "real doctor".

Judge Colgan said that after Dr Binnie was suspended he tried to line up alternative appointments for his patients - until security staff escorted him from the hospital.

Pacific Health failed to act with reasonable care in suspending Dr Binnie without clinical endorsement and did not make basic initial inquiries that would have disclosed no safety concerns from allegations by patients' families and advocates.

The judge said advice by managers to Dr Binnie's colleagues that he had been suspended because of "extremely serious" allegations and "serious mismanagement of a clinical case" amounted to exaggerated and false statements.

It was also wrong for the employer to have refused at that time to rule out an implication that patients were abused, he said.

Dr Binnie accused Pacific Health of deliberately allowing a false innuendo of sexual impropriety to circulate among his colleagues.

He also complained to the court that Mr Dunham failed to adequately explain to colleagues the result of the inquiry that cleared him of wrongdoing.

He did not want to discuss his ordeal with the Herald but his lawyers, former Cabinet minister Bill Jeffries and Dan O'Leary, hailed the appeal decision as completing a "four-year process of vindication".

They said the abuse of power by public officials illustrated "a dangerous gulf in the public health sector between so-called managerial staff and those carrying heavy clinical responsibilities such as Dr Binnie".