Jonathan is one of New Zealand’s leading health sector lawyers. He has extensive experience in all areas of health law and in the legal issues facing the health sector.
Following an early career in criminal law and civil litigation, Jonathan has specialised in health law since the late 1990s. After practising and studying health law in the UK, he returned to New Zealand to build a health sector practice.
In the early part of the 2000s, Jonathan undertook and completed a PhD in health law. His thesis examined the regulation of health professionals and health services, and considered the role that the law can play in improving the quality of health services. His research included an examination of New Zealand’s unique health regulatory system, with our no fault compensation system, the influential office of the Health and Disability Commissioner, and our then progressive competence assurance legislation for health practitioners.
Between 2005 and 2012, Jonathan was a litigation partner at Buddle Findlay, a large national firm, where he headed up that firm’s specialist health sector team, and practised almost exclusively in the health sector. He spent four years as a member of the firm’s Board. Jonathan left Buddle Findlay in 2012 to set up Claro.
Jonathan’s litigation and advisory practice covers the provision, regulation, funding and management of health services. He works closely with District Health Boards, private providers, insurance companies and professional indemnifiers, statutory regulators (such as the registration authorities operating under the Health Practitioners Competence Assurance Act), aged care providers, primary care providers, NGOs, professional colleges and associations, government departments, and many other health sector organisations. He regularly appears in the courts and before specialist tribunals. His advisory practice is typically at Board and senior management level.
Public health law is an area of particular interest – from both a policy and legal perspective. Jonathan has been involved in number of issues arising out of the Covid-19 pandemic.
Jonathan is frequently engaged to undertake independent investigations, reviews and inquiries – including leading investigations raising complaints about behavioural, safety and competence issues, and disclosures made under the Protected Disclosures Act.
Jonathan speaks and writes widely on health law and legal issues affecting the health sector. He is a member of the New Zealand Law Society’s specialist Health Law Committee. He chairs the Appeals Committee for an Australasian medical college.
Jonathan has regularly been included in Best Lawyers in New Zealand in the practice areas of Health Care Law and Medical Malpractice Litigation.
Jonathan’s experience includes
- Counsel in a New Zealand Bill of Rights Act challenge/judicial review (and subsequent appeal) of a DHB’s decision to ban smoking in the DHB’s mental health facilities (Supreme Court decision – B v Waitemata DHB  NZSC 88; Court of Appeal decision – B v Waitemata DHB  NZCA 184; High Court decision B and Steele v Waitemata DHB  NZHC 1702).
- Conducting an independent review into PHARMAC’s decision-making that led to the sole supply of lamotrigine (report is available publicly at https://pharmac.govt.nz/assets/2020-05-12-Lamotrigine-Independent-Review-Report.pdf)
- Counsel in the leading Court of Appeal case addressing the admissibility of evidence in professional disciplinary proceedings before the Health Practitioners Disciplinary Tribunal (A Professional Conduct Committee of the Nursing Council v Health Practitioners Disciplinary Tribunal & W  NZCA 435.
- Acting in some of the most significant inquiries of the last decade, including the Whanganui/Dr Hasil HDC investigation; the inquiries into the high profile death of mental health patient and related damages claim; and the inquiries into the Emergency Department death of a young woman with undiagnosed meningitis; inquests into intrapartum deaths including consideration of national maternity services.
- Counsel in leading decisions relating to treatment issues including; a hunger striker in prison refusing medical treatment (The Chief Executive of the Department of Corrections and Canterbury DHB v All Means All  NZHC 1433); High Court declaration that it would be lawful not to reinsert feeding tube into 7 year old boy knowing death would follow (Hutt DHB v W  NZFLR 873).
- Counsel in a High Court claim in which a group of general practitioners alleged a breach of contract by a DHB and a practitioner association in relation to the provision of after-hours primary health services (Dr Diana Scott Ltd & Ors v South Canterbury DHB and South Link Health  NZHC 2764).
- Prosecuting and defending cases before the Health Practitioners Disciplinary Tribunal; and acting as counsel in appeals from the Tribunal – e.g. Rabih v Professional Conduct Committee  NZHC 1110 (professional discipline; approach on appeal; expert evidence); Tunnicliff v Professional Conduct Committee  NZHC 1092 (penalty; appeals out of time); Professional Conduct Committee v Moon  NZHC 189 (Tribunal’s jurisdiction to suspend an order of suspension); Winefield v Professional Conduct Committee VIC-2006-485-2225 (9 months suspension following a fraud).
- Counsel in leading administrative law cases on statutory decision-making of responsible authorities (RA) under the HPCA Act – D v Physiotherapy Board CIV 2006-485-1980 (RAs making decisions about practitioners’ competence); Hallagan v Medical Council CIV2010-485-222 (limits on RAs’ powers when setting codes of practice); Cullen v Medical Council CIV-2007-485-1133 (RAs’ statutory powers to suspend practitioners).
- Habeas corpus applications (e.g. ST v Chief Executive of Canterbury DHB  NZHC 1775.
- Counsel in S v MidCentral  NZAR 342 , a leading High Court decision on duty owed by a DHB to a third party and the ambit of s8 NZ Bill of Rights Act (right not to be deprived of life) – woman raped by mental health patient.
- Advising health providers facing investigation by the Commerce Commission for possible breaches of the Commerce Act.
- Numerous OIA and Privacy Commissioner complaints including successfully defending claim before the Human Rights Review Tribunal re refusal to disclose health information to dangerous patient; disclosure of official and personal information protected under the Protected Quality Assurance Activity mechanism in the Health Practitioners Competence Assurance Act.
- Advising boards and senior executives on complex governance and conflict of interest issues; leading training for boards on governance & conflicts of interest, statutory duties.
- Counsel in ‘treatment injury’ appeals under the Accident Compensation Act (e.g. Accident Compensation Corporation v Stanley  NZHC 2765.
- Counsel in leading case on what treatment constitutes “life preserving services” during health sector strikes (APEX v Capital & Coast DHB).
Shousha v A Professional Conduct Committee  NAHC 1457 – professional misconduct by pharmacist – appeal against decision of the Health Practitioners Disciplinary Tribunal cancelling registration and award of costs – approach on appeal by High Court in penalty and costs cases.
Reilly v Accident Compensation Corporation  NZHC 1008 – delay in diagnosis of Guillain Barre Syndrome – treatment injury – causation under the Accident Compensation Act 2001.
Yan Shi v A Professional Conduct Committee of the Physiotherapy Board  NZHC 1550 – imposition of penalty by Health Practitioners Disciplinary Tribunal for a criminal conviction reflecting adversely on practitioner’s fitness to practise – jurisdiction of the Disciplinary Tribunal to award costs as part of penalty where practitioners is legally aided.
A Professional Conduct Committee of the Pharmacy Council v A, B, C and E  NZHC 949 – professional discipline – test for professional misconduct under s 100 Health Practitioners Competence Assurance Act 2003 – Health Practitioners Disciplinary Tribunal.
- A Professional Conduct Committee of the Nursing Council v Health Practitioners Disciplinary Tribunal & W  NZCA 435 – Court of Appeal decision upholding High Court’s decision on an application of judicial review of the Tribunal’s decision to admit hearsay evidence and to refuse to stay disciplinary charge – allegation of sexual relationship between nurse and 14-16 year old patient where patient refused to give evidence – application of the Evidence Act 2006 to professional disciplinary proceedings. High Court judgment – W v Health Practitioners Disciplinary Tribunal  NZHC 420,  3 NZLR 779
- Beer v A Professional Conduct Committee  NZHC 2828 – professional discipline – statutory appeal following decision of the Health Practitioners Disciplinary Tribunal – appeal against refusal to grant name suppression – appeal against Tribunal’s award of costs
- Dr Rose v Dental Council of New Zealand  NZHC 87 – judicial review of decisions made by the Dental Council – Council’s conduct of a review of the dentist’s competence under part 3 Health Practitioners Competence Assurance Act 2003 – proportionality of remedial action necessary to address a practitioner’s deficiencies – procedural fairness
- Appanna v Anglesea Hospital Limited & NZ Private Surgical Hospitals Assoc. Inc.  NZHC 474 – claim for damages brought by surgeon suspended by private hospital – nature of the relationship between private hospitals and medical specialists – credentialing of senior doctors in the private health sector – fiduciary relationships
- Professional Conduct Committee of the Physiotherapy Board of New Zealand v R  NZHC 2531 – professional discipline – physiotherapist entering into personal relationship with patient/former patient including social media communications – ambit of professional boundaries involving physiotherapy profession
- G v Director for Area Addiction Services for West Coast, Canterbury, South Canterbury and Southern DHBs  NZHC 1993 – patient with severe alcohol addiction – application of the Substance Addiction (Compulsory Assessment and Treatment) Act 2017
- Greenbaum v Waikato DHB & Watson  NZHC 1273 – credentialing processes at private hospitals – information obtained about surgeon as part of application for clinical privileges – extent to which information can be withheld from surgeon – application for non-party discovery
- B v Waitemata DHB  NZSC 88;  1 NZLR 823 – Supreme Court decision upholding Court of Appeal and High Court’s decision that DHB’s policy banning smoking on DHB premises lawful – judicial review – NZ Bill of Rights Act – discrimination – right to private life – humanity and dignity of detained persons – Smokefree Environments Act. Court of Appeal judgment – B v Waitemata DHB  NZCA 184;  3 NZLR 569
- Cole v Professional Conduct Committee of the Nursing Council  NZHC 1178 – professional discipline – ambit of professional boundaries involving nurse/former patient
- Rabih v A Professional Conduct Committee of the Dental Council  NZHC 1110 – professional discipline – approach on appeals – expert evidence – penalty – name suppression
- Tunnicliff v A Professional Conduct Committee of the Nursing Council  NZHC 1092 – professional discipline – penalty – approach on appeal – appeals out of time
- R v Wealleans  NZHC 1834 – third party disclosure of confidential health information
- Thompson v Accident Compensation Corporation  NZHC 1640 – treatment injury – causation
- The Chief Executive of the Department of Corrections and Canterbury DHB v All Means All  NZHC 1433;  3 NZLR 404 – hunger striker in prison refusing medical treatment
- ST v Chief Executive of Canterbury DHB  NZHC 1775 – application for writ of habeas corpus – detained mental health patient
- Professional Conduct Committee v Moon  NZHC 189 – dentist – professional disciplinary proceedings – whether Health Practitioners Disciplinary Tribunal has jurisdiction to suspend the penalty of suspension of practising certificate
- Accident Compensation Corporation v Stanley  NZHC 2765 – treatment injury – injury that is wholly or substantially caused by a person’s underlying health condition
- B and Steele v Waitemata DHB  NZHC 1702;  NZAR 937 – judicial review of a DHB’s decision to ban smoking in the DHB’s mental health facilities
- Dr Diana Scott Ltd & Ors v South Canterbury DHB and South Link Health  NZHC 2764 – alleged breach of contract by a DHB in relation to the provision of after-hours primary health services
- Hutt DHB v W  NZFLR 873 – High Court declaration that it would be lawful not to reinsert feeding tube into 7 year old boy knowing death would follow
- Hallagan v Medical Council CIV 2010-485-222 HC Wellington – judicial review – limits on Medical Council’s powers when setting codes of practice – challenge to statement on doctors and beliefs – conscientious objections
- Cullen v Medical Council CIV-2007-485-1133 HC Auckland – power to suspend medical practitioner pending disciplinary hearing
- Winefield v Professional Conduct Committee CIV-2006-485-2225 HC Wellington – appeal against decision of Health Practitioners Disciplinary Tribunal on penalty – 9 months suspension of pharmacist
- D v Physiotherapy Board CIV 2006-485-1980 HC Wellington – role of Physiotherapy Board when reviewing the competence of practitioners
- S v MidCentral  NZAR 342 – woman raped by mental health patient – duty owed by a DHB to a third party – s 8 NZ Bill of Rights Act – right not to be deprived of life
(Sole author unless otherwise stated.)
- “Medical Disciplinary Proceedings: A comparison with New Zealand” Dispatches, Vol 10(1), May 2000, King’s College, London
- “Transmission of infectious diseases”  NZLJ 213
- “Brickbats and bouquets” (A comparison between the New Zealand and UK medical disciplinary processes)  NZLJ 304
- “When do parents have the right to refuse medical treatment on behalf of their children?” NZ Med J 2000; 113: 297
- “What standards of conduct are practitioners required to meet in order to avoid criticism?” NZ Med J 2000; 113: 342
- “The impact of privacy laws on epidemiological research” NZ Med J 2000; 113: 449
- “Refusing emergency life-sustaining treatment” NZ Med J 2000; 114: 18
- Jonathan Coates & Jack Hill “Obtaining consent for epidural analgesia for women in labour” NZ Med J 2000; 114: 72
- “Responsibilities of doctors in management and governance” NZ Med J 2000; 114: 95
- “Mandatory reporting of incompetence” NZ Med J 2000; 114: 193
- “Recommending particular treatment options: the vitamin K experience” NZ Med J 2000; 114: 215
- “Reaching an acceptable standard of practice in an environment of limited resources” NZ Med J 2000; 114: 270
- “’Report cards’: the public’s access to indicators of clinical performance” NZ Med J 2000; 114: 342
- “The Cull report: requiring health providers to report complaints” NZ Med J 2000; 114: 363
- “The obligation to follow-up patients” NZ Med J 2000; 114: 412
- “The duty to report patients who are unfit to drive” NZ Med J 2000; 114: 453
- “No-fault compensation for medical errors: who wins?” NZ Med J 2000; 114: 527
- Jonathan Coates & Louise McKenzie “Attributing medical errors to ‘the system’: the new Accident Compensation legislation” NZ Med J 2000; 115: 142
- “Ending the patient relationship” NZ Med J 2000; 115: 301
- “The supervision of junior doctors” NZ Med J 2000; 115: 170
- “Enduring powers of attorney” NZ Med J 2000; 115: 251
- “Removal of the mandatory reporting provisions: Only a pyrrhic victory?” NZ Med J 2002, 115, 1162
- “Bottrill: further observations”  NZLJ 6
- “Regulation and innovation in health care” Internal Medicine Journal, Vol 45, Issue 10, p 989 (2015)
- “The threat of litigation as a possible barrier to innovation” Internal Medicine Journal, Vol 46, Issue 3, p 253 (2016)
- Coates J, Deans C, Connolly A. Informed consent. In: Morris KA, editor. Cole’s Medical Practice in New Zealand, 13th ed. Wellington: Medical Council of New Zealand; 2017
- Coates J, Weir, A, Boyce C. New Zealand. In: The Healthcare Law Review, The Law Reviews, London, 2017