Victim Impact Statements in disciplinary proceedings

In the recent decision of Bennett v Professional Conduct Committee [2022] NZHC 876 the High Court confirmed the relevance of Victim Impact Statements in professional disciplinary proceedings.

Under the Victims’ Rights Act 2002, victims of criminal offending are granted certain rights and standards of treatment, including the ability to provide Victim Impact Statements to the Court.

Victim Impact Statements are not strictly evidence, rather they are “information to the Court” which inform the Court about the effects of the offending, the victim’s views on the offending and the victim’s perspective. This means they do not need to comply with the strict admissibility requirements of the Evidence Act 2009.

In Bennett, Dr Bennett was charged with professional misconduct for engaging in a long-term sexual relationship with a vulnerable patient, Ms E. Dr Bennett admitted the charge through an agreed summary of facts and the Tribunal accordingly found that his conduct amounted to professional misconduct.

When the Tribunal came to consider penalty, the Professional Conduct Committee produced an unsigned victim impact statement from Ms E. The Tribunal received the statement and considered it in its penalty decision. This was challenged on appeal.

The High Court confirmed that the Tribunal was correct to receive the statement. While the provisions relating to victim impact statements in the Victims’ Rights Act 2002 only extend to victims of criminal offending, those provisions are of “parallel relevance” when imposing a penalty in a professional disciplinary setting. Provided that the adjudicating body observes the rules of natural justice and is satisfied that the information is reliably that of the victim, the statement can – and should – be considered at the penalty stage.

This decision has potentially powerful impacts. As victim impact statements are not strictly evidence, they are not tested through cross examination of the victim. It therefore removes what can be a daunting hurdle which has the potential for re-victimisation of the victim. 

Our health law team regularly assists both regulators and professionals facing professional disciplinary proceedings. Feel free to reach out to one of our health law experts if you are looking for further assistance.

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