Better call Harry

I’ve had bizarre cases, where it beggars belief that there’s any basis for complaints

Everyone loves a good scandal, not least doctors who avidly lap up stories of medics who have fallen into disgrace, if New Zealand Doctor readership stats are anything to go by. Harry Waalkens is all too familiar with the difficulties practitioners can get themselves into.

He’s the go-to guy for doctors and dentists in trouble. But for him these cases are not so cut and dried. At the coalface, the courts don’t always get it right and the patients can’t always be believed either.

“I’ve had bizarre cases, where it beggars belief that there’s any basis for complaints,” he says.

It would take a lot for Mr Waalkens to turn down a case, and he’s worked on some of the worst. Like other barristers, he sticks closely to the cab-rank rule which obliges lawyers to act for anyone who asks, unless they have good reason not to.

“It’s not that I don’t have a conscience, or that I don’t think carefully about the allegations. The essence of my profession is that if someone wants to be represented in court by a lawyer, we, as lawyers, have an ethical and professional obligation to appear for them.” Some clients are the victims of the environment in which they work. But others are “completely responsible for their own misfortune”.

Mr Waalkens defended former Hawke’s Bay GP David Lim, now serving five years for stupefying and indecently assaulting four patients; Ōamaru GP Stephen Dawson, who pleaded guilty last month to indecently assaulting a patient with an intellectual impairment; in 2006, New Plymouth doctor Hiran Fernando who was found guilty of 26 indecent assaults against female patients; along with many other cases.

In person, he’s a sharply attired 63-year-old with a roguish twinkle in his eye, ensconced in chambers high up in a smart office building overlooking the ports of Auckland with a fabulous view of the harbour.

A speaker of Tongan, he’s now also lord chancellor for Tonga, having administrative responsibility for the courts and a role in senior judicial appointments.

It’s hard to imagine he’s the father of a five-month-old baby. Mr Waalkens shows no sign of sleep deprivation and couldn’t be happier to have little Louis join his brood of twin sons and a daughter from his first marriage, who are now in their 30s. His wife, Aimee Credin, is a solicitor.

Mr Waalkens does the lion’s share of the health practitioner representation work in New Zealand, although he doesn’t want to appear boastful about that.

About 60 per cent of his time is spent defending doctors, dentists and other health professionals, and he loves every minute of it. It’s a privilege to represent these practitioners, he says. For each one of them, this is the worst moment of their professional lives, if not their personal lives as well, he says. They stand to lose their reputation and livelihood for which they’ve strived over many years.

And justice is not always served. Mr Waalkens can think of two cases in the past five years where an innocent client was convicted.

“Ending up with a jury verdict which you know is wrong is the most ghastly, gut-wrenching feeling,” he says. In one case, the common view of the courtroom was that the practitioner would be acquitted, yet the jury returned a guilty verdict.

“I will take that case to my grave.”

Most practitioners, he finds, are decent, caring people trying to do their best. Some have since become personal friends.

One of those was a Northland obstetrician and gynaecologist who faced up to 70 complaints at one point over a five or six-year period, questioning his competency.

“He had unprecedented publicity from the media, calling for distressed patients to come forward. It was a complete witchhunt,” says Mr Waalkens.

The man was the subject of a parliamentary inquiry but, in the end, was found guilty of just one charge of professional misconduct.

“He was completely the victim of the environment in which he was having to work,” says Mr Waalkens now. “A dedicated doctor. I considered he was very competent.”

But it’s not enough to be a highly competent health practitioner. If you make a mistake you need good communication skills more than you need a good lawyer.

That’s why locum work is high risk – these practitioners don’t get the chance to get to know or build a rapport with patients.

On the flipside, if you’re a not-great clinician but with good communication skills you’ll get no complaints, says Mr Waalkens.

“Communication is [to us] what real estate agents say about location,” he says.

Defending medics is not all that keeps Mr Waalkens busy. He takes many trips to Tonga to fulfil his obligations as lord chancellor, a role he took on at the request of his friend, the late King George Tupou V, in 2011.

It keeps him pretty busy but he likes to give back to Tonga, a country he’s enjoyed for a good many years, and not just for the game fishing.

His former wife is one-quarter Tongan and, in 1981, he became crown prosecutor in Tonga, before the birth of his first child in 1982.

Harry Waalkens is a keen hunter and duck-shooter. He’s also a sportsman – rowing in the last four World Masters Games and competing in Ironman events. He still plays the odd game of rugby.

He began life on a dairy farm in Taipuha, Northland. His father was Dutch and he was one of four children.

At 13, he was sent to King’s College where he scored near the bottom in the lowest third-form stream.

He pulled his socks up and several years later enrolled at the University of Auckland, first gaining a degree in accounting and then switching to law, graduating in 1979.

A round of doorknocking landed him a job with a small law firm where he was given a seat in the library for some days while they worked out what to do with him. There he met the litigation lawyers who were the most frequent library users and became inspired to make the jump into litigation.

Later, in 1988, he became a partner in Bell Gully Buddle and Weir, and in 1990, began representing doctors. In 1994, he moved solely into barrister work.

“I absolutely love it. The cases are all different. The law is challenging in terms of legal issues. You’re dealing with everyday people and their problems.”

It can be pretty amazing what tangles doctors and dentists get themselves into. Very often, it’s sexual relationships with patients. While it’s clearly a no-no for any practitioner, the truth often falls into a grey area.

“There have been many cases over the years where the practitioner has successfully defended the case even though he/she breached the guidelines. Because at the end of the day, there are human dynamics at play which feed into how relationships develop.

“[Sometimes], the patient has been very much to blame for the way the relationship develops.”

It’s yet another example of human fallibility that plays out in courtrooms and disciplinary tribunals around the country. And it’s a choice of career Mr Waalkens has no intention of giving up any time soon.