Ben-Dom v A Professional Conduct Committee appointed by the Medical Council of New Zealand
[2020] NZHC 3094
•23 November 2020
JUDGMENT ISSUED TO COUNSEL ONLY FOR A PERIOD OF FOUR DAYS PURSUANT TO [199] OF THIS JUDGMENT.
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF ALL COMPLAINANTS.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-206
[2020] NZHC 3094
IN THE MATTER OF an appeal pursuant to section 106(2) of the Health Practitioners Competence Assurance Act 2003 BETWEEN
RAN BEN-DOM
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF
NEW ZEALAND
Respondent
Hearing: 19-22 October 2020 Counsel:
D L Stevens QC and S Tomlinson for appellant A K Miller and H K Goodhew for respondent
D D Vincent for Health Practitioners Disciplinary Tribunal
Judgment:
23 November 2020
RESERVED JUDGMENT OF DOBSON J
BEN-DOM v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2020] NZHC 3094 [23 November 2020]
Contents
Introduction [1]
The statutory context [12]
The complaints [16]
Grounds of appeal [32]
Consultations arguably were clinically justified [32]
Theory of medicine defence [35]
Credibility findings [47]
Complainant A [49]
Complainant B [55]
Failures to make adequate notes of consultations [63]
Challenges to factual findings on individual complaints [74]
Complainant A [75]
Complainant E [81]
Complainant G [85]
Complainant H [88]
Complainant F [102]
Professional misconduct not made out [112]
Misapplication of s 100(1)(a) and (b) of the Act [125]
Cultural differences and language issues [132]
Name suppression [140]
Imposition of unfair conditions [154]
Fine of $5,000 excessive? [160]
Challenges to the reasonableness of costs orders [164] PCC cross-appeal [181]
Costs [194]
Summary [197]
Introduction
[1] This is an appeal brought pursuant to the provisions of the Health Practitioners Competence Assurance Act 2003 (the Act) by a medical practitioner who has been found guilty of professional misconduct by the Health Practitioners Disciplinary Tribunal (the Tribunal).1
[2] The appellant immigrated to New Zealand in 2009. He had practised medicine in Israel since 1989. His conduct in consultations with nine different female patients between June 2011 and May 2017 resulted in complaints that were investigated by a professional conduct committee (PCC) appointed pursuant to procedures under the Act. The investigation led to a charge of professional misconduct, the terms of which included 12 particulars and a number of sub-particulars.2
1 A Professional Conduct Committee appointed by the Medical Council v B HPDT Wellington 1078/Med 19/445P (the Tribunal decision).
2 One of the particulars was withdrawn at the hearing.
[3] All of the nine complainants were female patients of other doctors at the medical centre at which the appellant worked as a general practitioner in the relevant period. Their complaints arose out of consultations with the appellant who saw him when their regular doctor was unavailable.
[4] Eight of the women complained that the appellant raised matters of breast health with them, in contexts unrelated to the medical concerns about which they had sought an appointment. They also complained that the appellant had raised the topic insensitively and persisted with it, despite varying levels of evident reluctance on their parts.
[5] Four of the complainants permitted the appellant to conduct a clinical breast examination (CBE), having shown varying levels of reluctance for that to occur.
[6] The ninth complainant was a 15 year old girl who had consulted the appellant about a very sore throat. He initiated a discussion about sexual intercourse and masturbation.
[7] After interviewing all the complainants and the appellant, the PCC presented the charge and all its particulars on the basis that it accepted the appellant’s conduct was not undertaken for sexual gratification. The Tribunal accepted that to be the case.
[8] Following a 10 day hearing in November 2019, the Tribunal delivered its decision on 17 April 2020. The charge was found to be made out, but not to the extent that all the particulars were upheld. The appellant was censured, fined the sum of
$5,000 and ordered to pay costs of $102,400 towards the inquiry and prosecution and
$57,600 towards the costs and expenses of the hearing. The appellant’s application for non-publication of his name was declined but there has been no publication of his name pending determination of the appeal.
[9] After receipt of the complaints, on 26 October 2017 the Medical Council of New Zealand (MCNZ) imposed interim conditions on the appellant’s entitlement to practise. The imposition of those conditions was the subject of a separate appeal pursued in the District Court. That led to an agreement on 16 May 2018 permitting
him to practise on somewhat less restrictive conditions that were to apply until the Tribunal’s decision.3
[10] The appellant contested the outcome and findings of the Tribunal, giving notice of 23 grounds of appeal. Shortly before the hearing of the appeal, the appellant advised that three of those grounds were being abandoned.
[11] The Tribunal generally abides the decision of the Court on appeals from its decisions. It instructed counsel to participate in this appeal because the appellant contested its jurisdiction to impose costs orders on the terms that it did. However, the jurisdictional challenge in respect of costs was not pursued and at the hearing I heard relatively confined submissions on the merits of the costs orders from Mr Vincent, who was in other respects excused from attending the hearing of the appeal.
The statutory context
[12] Grounds for disciplining a health practitioner are stipulated in s 100 of the Act. The relevant grounds are as follows:
100 Grounds on which health practitioner may be disciplined
(1)The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
…
3 I was not directed to any detail of that other appeal.
[13] The range of penalties the Tribunal may impose is listed in s 101, and in descending order of seriousness after cancellation of registration and suspension for a period not exceeding three years, the lesser penalties are:
101 Penalties
(1) In any case to which section 100 applies, the Tribunal may—
…
(c)order that the health practitioner may, after commencing practice following the date of the order, for a period not exceeding 3 years, practise his or her profession only in accordance with any conditions as to employment, supervision, or otherwise that are specified in the order:
(d)order that the health practitioner be censured:
(e)subject to subsections (2) and (3), order that the health practitioner pay a fine not exceeding $30,000:
(f)order that the health practitioner pay part or all of the costs and expenses of and incidental to any or all of the following:
(i)any investigation made by the Health and Disability Commissioner under the Health and Disability Commissioner Act 1994 in relation to the subject matter of the charge:
(ii)any inquiry made by a professional conduct committee in relation to the subject matter of the charge:
(iii)the prosecution of the charge by the Director of Proceedings or a professional conduct committee, as the case may be:
(iv)the hearing by the Tribunal.
…
[14] Appeals against findings under s 100 and penalties imposed under s 101 are provided for in s 106(2) of the Act. Section 109(2) provides that the appeal is to be by way of rehearing. Under s 109(3), the Court may confirm, reverse or modify the decision or order appealed against and may make any other decision or order that the Tribunal could have made.
[15] The appeal against liability and penalty findings is a general one to which the approach of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar
applies.4 This means that the appellant bears the onus of satisfying the Court that it should differ from the Tribunal’s decision and the weight that the Court gives to the Tribunal’s conclusions is a matter of judgement in each particular case.5 I separately consider the bases for appeals against costs orders, and from the decision not to suppress publication of the appellant’s name, when I address those aspects of the appeal.6
The complaints
[16] On 8 June 2011, complainant A took her six year old son for a consultation about his health. During the consultation, the appellant raised the topic of her breast health with complainant A in circumstances she found embarrassing. The embarrassment was increased by the matter being raised in the presence of her son.
[17] On 28 June 2012, complainant B consulted the appellant complaining of a sore throat. The appellant raised the topic of breast health and performed a CBE. This complaint included that the appellant did not offer a chaperone to be present, the examination was not conducted consistently with accepted medical practice and, whilst carrying out the CBE, the appellant observed that the complainant was very attractive.
[18] On 29 November 2012, complainant C consulted the appellant about an upper respiratory tract infection and repeat prescriptions. The appellant raised the topic of breast health and performed a CBE, which the complainant considered took an unreasonable length of time, and more time was spent on her breast health than on the health concern for which the appointment had been arranged. A trainee doctor was present for the consultation.
[19] On 13 February 2014, complainant D consulted the appellant about blistered eczema on her hand and the appellant unexpectedly raised the topic of breast self- examination. The discussion was not recorded in the patient’s notes.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand [2017] NZHC 2847 at [86]–[97]; Johns v Director of Proceedings [2017] NZHC 2843 at [68]–[70].
6 See [142], [149] and [167] below.
[20] On 15 August 2014, complainant A consulted the appellant again, this time unaccompanied by her son and to consult about stress. The appellant raised the topic of breast health with her and performed a CBE. The patient complained that neither a privacy curtain nor a modesty blanket were used during the examination, which she considered took an unreasonably long time, and that the appellant made an inappropriate complimentary remark about her breasts.
[21] On 26 March 2015, complainant E consulted the appellant about diarrhoea and a urinary tract infection. The appellant raised the topic of breast health, asked her to demonstrate how she self-examined her breasts and offered to perform a CBE.
[22] On 9 April 2015, complainant F, then a 15 year old girl, consulted the appellant about a very sore throat. He initiated a discussion about sexual intercourse on the basis of a note of a previous consultation made by her regular doctor. He discussed the prospect of masturbation as being preferable to casual sex and persisted in discussing sexual matters when she was embarrassed and uncomfortable at his doing so. It was the first occasion on which she had visited a doctor on her own. This complainant knew her father to be a patient of the appellant, and was concerned about the risk that he would not respect the confidentiality of matters she discussed with him
[23] On 17 May 2016, complainant G consulted the appellant about asthma and he raised the topic of breast health with her. The appellant repeatedly offered to perform a CBE or demonstrate how the patient should self-examine her breasts, both in the presence of the patient’s 14 year old daughter and while the appellant had excluded her daughter from the room.
[24] On 24 May 2017, complainant H consulted the appellant about a repeat prescription for medication. The appellant raised the topic of breast health with her and performed a CBE. He also offered to perform a cervical smear test, failed to offer a chaperone being present and inadequately recorded the matters that had occurred in his notes of the consultation. The patient complained that the appellant had made an inappropriate comment about her breasts during the examination.
[25] In May 2016, the manager and the then managing partner of the general practice where the appellant was working discussed with him his practice of raising breast health with patients when it was unrelated to the reason for their consultation and was not initiated by the patient. That led to the appellant completing a written undertaking in June 2016 to the effect that he would not do so in the future.7 The conduct complained of by complainant H occurred some 11 months after the undertaking had been given, and the particulars in respect of that complaint included that the CBE was carried out in breach of the undertaking.
[26] In summary, of the four CBEs conducted, only one (that of complainant C in November 2012) occurred in the presence of a chaperone. Two out of the four CBEs were not recorded in notes made by the appellant of the respective consultations. Similarly, where the complaint was of the appellant initiating discussions of breast health and the practice of breast self-examinations, on two of the four occasions he did not record in notes of consultation that that topic had been addressed.
[27] The appellant acknowledged that he was out of step with the mainstream thinking of the medical profession in New Zealand about advice to women for breast health. The charge was brought on the basis that his conduct breached ethical obligations and accepted standards of practice, including (but not limited to):
· MCNZ statements on good medical practice (June 2008, April 2013, June 2016);
· MCNZ statement on sexual boundaries in the doctor-patient relationship – a resource for doctors (October 2009); and
· MCNZ statement on the maintenance and retention of patient records (August 2008).
[28] The appellant contended both before the Tribunal and on appeal that his practice of routinely and proactively raising breast health with female patients, including that they should practice breast self-examination and have CBEs conducted
7 The details of this undertaking are discussed at [90] below.
by their doctor in the annual intervals between two yearly mammograms, was good practice and saved patients’ lives.
[29] This approach is contrary to accepted practice in New Zealand since about the mid-2000s. A number of the publications relied on by the PCC and endorsed by its medical expert called before the Tribunal reject the practice of self-examination, essentially because it is likely to lead to women unnecessarily worrying about unidentified lumps in their breasts. Also, it can be insufficiently reliable in identifying potentially cancerous growths.
[30] In all but two of the 12 particulars of the charge, the terms alleged that in either initiating dialogue about CBEs and breast self-examination, or where CBEs had been conducted by him, the appellant’s conduct was not clinically justified.
[31] The Tribunal upheld that element in respect of both forms of complaint of the appellant’s conduct.
Grounds of appeal
Consultations arguably were clinically justified
[32] The first ground of appeal was that the Tribunal erred in accepting the PCC case that initiation of discussion about breast health by the appellant was not clinically justified. The appellant acknowledged that he was aware of guidance influencing acceptable standards of practice in New Zealand on breast health, but disputed that his conduct in initiating discussions about breast examinations, and in the cases he did conduct CBEs, could be correctly characterised as not clinically justified. In effect, on this and the second ground of appeal, he argued that there continued to be substantial support internationally for the practices he adopted, and that it was open to him to form the professional opinion that the interactions he undertook with each of the complainants were clinically justified.
[33] The Tribunal heard substantial evidence on relevant standards in New Zealand, and on the recommended approach as publicised by the Cancer Society of New Zealand and the New Zealand Breast Cancer Foundation. The evidence for the
PCC was that from at least 2002 onwards, there has been published advice that there were no (or insignificant) benefits from breast self-examination or CBEs, that particularly being the case where the patient was not at a moderate to high risk of breast cancer (based on family history and other indicators).
[34] The Tribunal eschewed any responsibility to articulate techniques, merits and disadvantages or otherwise of processes for breast awareness,8 but did find on the evidence that breast self-examination was no longer actively encouraged. It was open to the Tribunal on the preponderance of expert evidence before it to take that view. On the facts, it was clear that the appellant was acting contrary to the practices adopted by the medical centre in which he was working, and also contrary to recommended practices in New Zealand. There was insufficient in the literature (reflecting the position in overseas countries) which supported the conduct of CBEs and teaching patients to self-examine their breasts on which the Tribunal could have found that such practices were indeed clinically justified for patients where the risk of breast cancer under the Ministry of Health recommended standards was low or low to medium. That was the status of each of the complainants in question. Accordingly, the appellant cannot make out an error by the Tribunal in findings that the relevant matters he raised with patients were not clinically justified.
Theory of medicine defence
[35] The appellant maintained the legitimacy of his view on proactive consultations about breast health not only as a matter of justification for his conduct, but also as the basis for a defence under s 100(4) of the Act, which provides:
No person may be found guilty of a disciplinary offence under this Part merely because that person has adopted and practised any theory of medicine or healing if, in doing so, the person has acted honestly and in good faith.
[36] On the second ground of appeal, Mr Stevens argued that the Tribunal’s failure to accept that this defence applied was an error of law. He argued that this defence was a complete answer to substantially all of the particulars of the charge.
8 Tribunal decision at [115].
[37] The scope of this defence, as it appeared in the previous statute in the same terms, was considered in the 1992 decision in Tizard v Medical Council of New Zealand.9 In that case, a Full Court of the High Court observed:10
… It is of interest that, while several have seen “theory of medicine” exceptions as being intended to provide room for minority views, no decision has recognised the idiosyncratic view of a single practitioner, unsupported by scientific proof or by a significant number of his or her fellow practitioners, as “a theory of medicine”.
[38] The application of the defence has been described by the authors of Health Law in New Zealand in the following terms:11
The position is that, while the defence appears to provide a small and uncertain degree of leeway to a doctor who practises a form of alternative medicine he or she genuinely believes to be effective, the “theory of medicine” defence may not, in general, hinder courts and disciplinary tribunals from assessing the actions of such a doctor in accordance with the usual tests for expected professional standards.
[39] Mr Stevens criticised the Tribunal’s rejection of the “theory of medicine” defence on a number of grounds. First, he contended that the Tribunal’s decision required that a qualifying “theory of medicine” would have to be a new one. In three paragraphs considering the possible availability of this defence to the appellant, the Tribunal did observe that there was no new theory of medicine about the preferable approach to take in encouraging female patients to be aware of breast health.12
[40] Read in context, however, those comments do not suggest that the Tribunal misunderstood the nature of the defence by requiring a theory of medicine to be a new one for it to qualify. Rather, they are in the context of the appellant’s approach being substantially outdated in terms of MCNZ statements on practice, and guidance for doctors in New Zealand. The Tribunal comments reflect an analysis that there is no restoration of the previous standards which have now been discarded in this country but are still adhered to by the appellant. I am not satisfied that the Tribunal decision
9 Tizard v Medical Council of New Zealand HC Auckland M2390/91, 10 December 1992.
10 At 23.
11 Peter Skegg and Ron Paterson Health Law in New Zealand (Thomson Reuters, Wellington. 2015) at [4.4.9].
12 Tribunal decision at [131]–[133].
reflects any error in its understanding of the scope of a theory of medicine that might afford such a defence.
[41] The second aspect of the appellant’s criticism was that the Tribunal failed to take into account what Mr Stevens submitted to be “the strong support it continues to derive from organisations of high standing in the USA”. Mr Stevens argued that the appellant was entitled to rely on numerous publications which he contended were of high standing, mostly published in the United States and which endorsed the practice of CBEs and recommending patients to undertake self-examinations.
[42] Those opinions were commented on by witnesses offering expert evidence to the Tribunal. The principal expert called by the PCC was Professor Bruce Arroll who is professor of general practice at Auckland University Medical School, and also a general practitioner in practice in Manurewa. On the basis of the evidence, it was clearly open to the Tribunal to find that the approach the appellant contended for was not in conformity with accepted medical practice in New Zealand. Further, that the academic articles cited for the appellant did not have relevant standing to validate his approach as an alternative theory of medicine. Mr Stevens criticised the evidence of Professor Arroll where he dismissed the writings cited for the appellant as having no value at all. According to Mr Stevens, that attitude showed a lack of objectivity. Further, Mr Stevens argued that the Tribunal had to do more in analysing these materials than merely find that it preferred Professor Arroll’s opinion.
[43] However, there was a good deal more to the medical opinions against the appellant’s approach than their rejection by Professor Arroll. I am satisfied there was sufficient evidence for the Tribunal to come to the view it did.
[44] One of the doctors called on behalf of the appellant, Dr Eletha Taylor, accepted that the current body of medical opinion in New Zealand, and in other similar environments such as Australia and the United Kingdom, was that the evidence does not support routine self-examination by patients. Dr Taylor acknowledged that view was the subject of controversy in the United States. The evidence of at least three, and potentially four, other experts was consistent with this and a number confirmed that
CBEs are not recommended as a screening test.13 The court on appeal is not in a position to reverse the Tribunal’s conclusion, where it was supported on the preponderance of evidence.
[45] It was clear on the evidence that the appellant was aware of reputable literature dating from 2003 that breast self-examination was no longer recommended in New Zealand and that subsequent publications which articulated standards that were to be followed required doctors to approach consultations about breast awareness quite differently from the practice the appellant adopted. There was evidence that his peers in the practice and his employer expressed concern at the manner in which he continued to raise the topic of breast health and breast examinations with female patients, but the appellant rejected those concerns, maintaining that his view was correct.
[46] Accordingly, there was no error by the Tribunal in rejecting Mr Stevens’ submission that there is, in the New Zealand general practice environment, a valid alternative to the mainstream view that still endorses the practices of CBE and breast self-examinations. It follows that the appellant’s adoption of that view cannot constitute a theory of medicine for the purposes of the defence under s 100(4) of the Act.
Credibility findings
[47] Mr Stevens made detailed submissions to the Tribunal challenging the credibility of all or relevant parts of the evidence of a number of the complainants. In the third ground of appeal, he advanced similarly detailed arguments challenging the Tribunal’s findings that complainants A and B were credible. Mr Stevens submitted that the extent of inconsistencies and demonstrated unreliability of the evidence from these complainants should have required the Tribunal to reject their claims where they were contested by the appellant.
13 While being questioned by members of the Tribunal, Dr Taylor considered that the evidence was not there for GPS to be preforming CBEs.
[48] For the PCC, Ms Miller urged caution in revisiting credibility findings because the Tribunal had the advantage of seeing and hearing these complainants. She cited the observation of the Privy Council that a transcript may be treated as “the dead body of the evidence, without its spirit”.14 Credibility findings are, however, not inviolate. Finders of fact can demonstrably err in their process of assessing credibility and reliability, and the Court has, in Rabih v Professional Conduct Committee, endorsed a list of indications for consideration of the credibility of a complainant’s evidence.15 Those considerations are:16
(a)The manner and demeanour of the witness when giving evidence.
(b)Issues of potential bias, that is, to what extent was evidence given from a position of self interest.
(c)Internal consistency or, in other words, whether the evidence of the witness was consistent throughout, either during the hearing itself, or with regard to previous statements.
(d)External consistency or, in other words, was the evidence of the witness consistent with that given by other witnesses.
(e)Whether non-advantageous concessions were freely tendered.
Complainant A
[49] Complainant A gave evidence in respect of particulars and sub-particulars arising out of separate consultations in June 2011 and August 2014.
[50] Mr Stevens cited 19 instances of inconsistencies, inadequacies or alleged acknowledgements of lack of recollection or other indication of unreliability from a detailed analysis of complainant A’s evidence. Mr Stevens raised virtually all of them with the Tribunal and part of his criticism is that the Tribunal’s decision dealt with only two of these points. Mr Stevens submitted that, at least when assessed cumulatively, the list demonstrated the lack of credibility of complainant A to an extent that the Tribunal ought to have found that her evidence did not make out the critical
14 As cited in Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand, above n 5, at [77]. See R v Bertrand (1867) LR 1 PC 520 at 535 per Sir John Coleridge.
15 Rabih v Professional Conduct Committee [2015] NZHC 1110, [2015] NZAR 1102.
16 At [40].
components of the particulars of the charge that related to her consultations with the appellant.
[51] Mr Stevens cross-examined complainant A extensively and very closely at the hearing. From the tenor of her replies, I incline to the view that she probably did not anticipate being questioned in such close detail on the circumstances of the two consultations in question. On many peripheral details, she was certainly unclear or uncertain. She seems to have been prepared to make concessions that her original recollection may have been wrong when confronted with evidence to the contrary, but was firm on the matters of most importance to her. I am satisfied that the Tribunal was entitled to draw that distinction between the reliability and credibility of her evidence on critical matters, and the lesser standard reflected in her answers on peripheral matters.
[52] The Tribunal made separate assessments of components of her evidence that were the foundation for a number of sub-particulars of the particulars of the charge which related to her consultations. The Tribunal found the following aspects of complainant A’s evidence not established on the balance of probability:
(a)that the appellant did not use a privacy curtain to allow her to undress before the CBE, nor was there a modesty blanket available to her while it occurred;17
(b)that the appellant asked complainant A whether she had sex with her husband in the context of a question as to whether her husband examined her breasts.18
[53] From the appellant’s perspective, these findings ought to have added weight to the doubts over the credibility of the remainder of her evidence. The contrary view is that these findings demonstrate the level of care taken in the Tribunal’s analysis, providing a measure of assurance that its credibility findings were the subject of thorough analysis.
17 Tribunal decision at [210].
18 Tribunal decision at [222].
[54] Of the 19 challenges to the credibility findings about complainant A, the majority do fall within matters of relatively less material detail about which a witness in such circumstances might reasonably be expected to be vague, and even on some such details, understandably mistaken. They do not raise a concern about bias by complainant A, nor any determination to exaggerate her criticisms to make the disciplinary proceeding more difficult for the appellant. I am not persuaded that the Tribunal erred in accepting complainant A’s credibility on the features of the particulars and sub-particulars found to be made out.
Complainant B
[55] Mr Stevens raised similar challenges to the credibility of complainant B before the Tribunal, and again on appeal. He cited 10 inconsistencies or inadequacies after a similarly extensive cross-examination of this complainant.
[56] Complainant B was 59 at the time of the consultation with the appellant in June 2012. She went to see him about a sore throat at a time when her usual doctor was not available. On her recollection, after a brief discussion about her throat, the appellant asked if she examined her own breasts, and offered to give her a CBE then and there. Initially complainant B was reluctant. She acknowledged the importance of monitoring because a close relative had died of breast cancer at a relatively young age. After the appellant asked her about breast examinations some three or four times, she agreed he could conduct a CBE.
[57] Her complaint included that during the examination, with her sitting sideways on a bed raised higher than a chair, and with the appellant with his hands on her breasts, he said to her “oh, you know that you’re very attractive, don’t you”. Complainant B’s evidence was that she was already uneasy at this point of the consultation and her immediate response was “I’m out of here”. She then got up, dressed and left. She made an oral complaint to the receptionist at the medical centre as she left. She disputed the inclusion in the notes the appellant made of the consultation that a chaperone had been declined and also disputed that the CBE had been “normal” because she did not consider that a proper breast examination had been conducted.
[58] After the consultation, complainant B contacted the medical centre in October 2017 and a written record was taken by the practice manager of the terms of her complaint. In evidence before the Tribunal, complainant B disputed a number of the details recorded in that note.
[59] The appellant disputed that he would have made any comment to the complainant about her personal appearance whilst conducting a CBE. He also claimed that the notation of a chaperone having been declined would not have been recorded in the notes unless that occurred.
[60] The appellant also rejected complainant B’s criticism that the CBE was conducted other than in accordance with best practice, and he disputed the circumstances in which she claimed the consultation ended with her suddenly dressing and leaving the surgery.
[61] In evaluating the competing versions on this complainant’s evidence, the Tribunal considered that the appellant had been largely relying on his normal practice in such consultations, rather than having a specific memory of his particular interactions with complainant B. In undertaking an analysis of specific sub-particulars of this particular of the charge, it found that some of the allegations had not been made out. The Tribunal preferred the contemporaneous consultation notes where they referred to the appellant having offered a chaperone, over complainant B’s recollection that a chaperone was not offered. Overall, however, the Tribunal was satisfied about the credibility of complainant B’s evidence. The Tribunal preferred the complainant’s description of how the CBE occurred, rather than the appellant’s description of how he would have undertaken it.
[62] My reasoning on this challenge to the Tribunal’s ruling accepting complainant B as a credible witness is similar to that for complainant A. There are differences of recollection between her evidence, and the details as recorded in the 2017 interview with the practice manager, and as to the precise detail in which the sequence of events occurred. As with complainant A, however, complainant B appears to have withstood a rigorous cross-examination, being unmoved on the elements of
her complaint that were most important to her. Accordingly, I can find no ground for upsetting the Tribunal’s factual findings as to her credibility.
Failures to make adequate notes of consultations
[63] The sub-particulars of the charge relating to five of the complainants included that the appellant had not recorded material aspects of the respective consultations with those complainants in the patients’ notes. There was no contest over the absence of relevant records. The appellant offered somewhat inconsistent explanations, at least in respect of one of the omissions, in his initial interview and then in evidence before the Tribunal.
[64] The appellant’s fourth ground of appeal was that the Tribunal found the omissions in two cases to merely be negligence, two to be negligence bringing discredit to the profession, and two to be malpractice and conduct that brought discredit to the profession. Without reasons for ranking the consequences of such omissions differently, Mr Stevens submitted that there was an absence of consistency and generally an over-reaction to what should have been accepted as oversights. He submitted that the failure to keep sufficient patient notes of consultations could not constitute either malpractice or conduct bringing discredit to the profession.
[65] In defending the Tribunal’s findings, Ms Miller cited the Court’s acknowledgement in an earlier appeal that “meticulous record-keeping is a fundamental obligation of the practitioner”.19 The omissions breached the standard required by the MCNZ’s standard for maintenance and retention of patient records. On the relative importance of recording a CBE, the Tribunal had expert evidence from Professor Arroll that the fact that a CBE had been done should be recorded in a patient’s notes. In effect, it is an activity that ought to be recorded so that other practitioners know when CBEs have taken place and any abnormal findings should be commented upon, again for subsequent monitoring.
[66] However, Professor Arroll and other practitioner witnesses accepted in their evidence that important topics can get left out of the consultation notes made by
19 J v Director of Proceedings HC Auckland CIV-2006-040-2188, 17 October 2006, at [63].
general practitioners. Dr Taylor, called for the appellant, said that she would counsel clear documentation by practitioners undertaking CBEs “in order to protect the health professional”.
[67] Ms Miller submitted that attempting to dismiss the omission to record CBEs and recommendations that patients undertake breast self-examinations as mere oversight was inconsistent with the importance the appellant consistently attributed to proactively raising such matters routinely with female patients.
[68] The Tribunal’s different rankings of the disciplinary consequences of such omissions need to be read in the context of the Tribunal’s analysis of the particulars in respect of each complainant. The conduct of the appellant in relation to two patients where he failed to record a CBE did warrant a disciplinary response. The second of those, complainant H, occurred in May 2017, after the appellant had provided a written undertaking not to do that. Both women were patients of other doctors, and the appellant was undertaking an activity that he knew did not accord with recommended practice. The Tribunal was entitled to treat those omissions as significant, irrespective of any explanation for them.
[69] There is scope for treating the omissions to record discussions in which the appellant recommended breast self-examination, and raised other concerns about monitoring women’s breast health, as arguably less serious. Nonetheless, the appellant was still encroaching on a topic when uninvited that was inconsistent with the practice of his colleagues and with MCNZ standards. As he was doing so with other doctors’ patients, it was important that a record be maintained of it. The relative importance of the omission might legitimately be seen by the Tribunal as fluctuating, depending on the other circumstances of the consultation with particular complainants.
[70] This reasoning also applies to the appellant’s failure to note the discussion of sexual matters with complainant F. Given her age and the subject matter traversed, even on the appellant’s competing version of the consultation, the discussion he initiated on sexual matters assumed an importance that ought to have been recorded for the benefit of other doctors and (adopting the observation of Dr Taylor) for the appellant’s own protection.
[71] I do not accept there was any error in the differential consequences as determined by the Tribunal. I agree that at least cumulatively these omissions in the circumstances in which they arose warranted a disciplinary response.
[72] In oral submissions, Mr Stevens emphasised his written submission that the Tribunal had ranked the appellant’s omissions to make adequate notes of consultations more seriously than was warranted by analogy with the reasoning in A v A Professional Conduct Committee.20 In that case, Simon France J treated “poor note keeping of certain events” and issuing prescriptions on the wrong forms as “not self-evidently of sufficient seriousness to constitute conduct satisfying one of the three options under the first stage”.21
[73] I am not persuaded that the circumstances in which criticisms were raised of the practitioner in that case are comparable to the circumstances in which material matters were not recorded in the present case.
Challenges to factual findings on individual complaints
[74] The fifth to thirteenth grounds of appeal all related to specific findings on individual sub-particulars of the charge arising from the individual complaints.
Complainant A
[75] The fifth ground of appeal related to the Tribunal’s findings on the appellant’s conduct during his June 2011 consultation with complainant A. An element of the complaint was that the appellant had initiated dialogue about breast examinations in the presence of complainant A’s six year old son, even although the reason for complainant A’s visit related to intestinal issues her son was experiencing.
[76] The Tribunal found that the appellant was not sensitive to disquiet that complainant A may have been feeling about discussing the topic in front of her son. He had raised the topic with her when it was not clinically justified, and in a manner that caused discomfort to an extent that the patient shortly thereafter made a complaint
20 A v A Professional Conduct Committee [2018] NZHC 1623.
21 At [36].
to the practice manager. The Tribunal held that it could not find as a matter of fact that the six year old son who remained in the room was distracted by playing with toys. The Tribunal found the conduct to amount to malpractice that brought discredit to his profession. On its own, the Tribunal did not consider this conduct warranted disciplinary sanction but, cumulatively with other particulars, it did.
[77] Mr Stevens cited complainant A’s acceptance during cross-examination that she did not have a particularly clear recollection of the 2011 consultation. She also agreed that her six year old son was distracted by playing with toys during the discussion about her breast health, and that even if he had focused on the conversation it was most likely that he would have been too young to understand what was being discussed. There was no evidence that complainant A told the appellant during the consultation that she was uncomfortable discussing this subject in the presence of her son and, in the absence of such a communication, Mr Stevens submitted that the Tribunal had unfairly criticised the appellant for not being sensitive to her disquiet.
[78] In addition, an experienced practice nurse familiar with the appellant’s work habits considered it appropriate for him to seize such opportunities to raise matters such as breast screening and tests. In her view, patients “almost always appreciated this proactive approach”.
[79] The PCC referred to the appellant’s acknowledgements in cross-examination that it was not necessary to raise breast health with complainant A at the time, and that it had been inappropriate for him to do so. In such circumstances, the Tribunal’s finding was justified, given the extent to which this conduct deviated from the required standards for general practice. Ms Miller submitted there could be no criticism of the finding that, whilst on its own it did not warrant disciplinary sanction, as a component of a course of conduct, it could cumulatively be taken into account in imposing disciplinary sanction.
[80] Given the evidence on the point, it would have been open to the Tribunal to make the finding that the complainant’s son had been distracted during the relevant conversation. However, I am not persuaded that its declining to do so was material to its overall assessment of this particular of the charge. As the first in time of the
consultations giving rise to relevant complaints, it is tenable for the appellant to argue that the matter ought to have been treated less seriously than the Tribunal did. However, it was in breach of the required standards. In the later consultations, the appellant persisted with an approach of initiating discussions and examinations that were entirely unrelated to the health concerns bringing the respective patients to him. Accordingly, I can find no error in the Tribunal having regard to this first instance as adding in an incremental way to the justification for disciplinary sanction when the particulars of the charge made out by the PCC were assessed cumulatively.
Complainant E
[81] The sixth ground of appeal relates to the Tribunal’s findings in respect of complainant E. The Tribunal accepted this complainant’s version that she had seen the appellant (not her regular doctor) for an urgent consultation in March 2015 because she was suffering from diarrhoea and a urinary tract infection. It appears the majority of the consultation was taken up with the patient’s breast health, that having been raised by the appellant because the complainant’s patient records showed that she had a lump removed from her breast in 2013 and she was taking the oral contraceptive pill. The appellant treated that as relevant to the level of risk of breast cancer that she may be exposed to. The Tribunal found that the appellant offered to perform a CBE and that this constituted malpractice and conduct bringing discredit to the profession.
[82] On appeal, Mr Stevens challenged the evidentiary basis for a finding that the appellant had offered to undertake a CBE. The complainant’s evidence was that the doctor talked to her about “how I should have a doctor examine me”, and that while he “didn’t straight out ask to do a breast examination, … he was telling me what I ‘should’ be getting done”. The PCC supports the implication drawn by the Tribunal that the complainant reasonably understood the appellant to be expressing a willingness to perform such an examination if the patient accepted his advice.
[83] This was in the context of a consultation where the complainant recalled that she was:
… acutely unwell, not with my regular GP, an unnecessary conversation to bring up to a patient who was quite obviously aware of their breast health because they had had specialist involvement.
[84] I do not accept there was any insufficiency of evidence for the Tribunal to make the finding that the appellant was indeed offering to conduct a CBE on the patient during the consultation. His questioning on the topic included requesting that she demonstrate (whilst clothed) how she examined her own breasts. Her clear recollection of the implications of what the appellant was urging on her, in circumstances of the power imbalance existing between doctor and patient, render it somewhat unrealistic for the appellant to rely on the lack of evidence of an offer in explicit terms to conduct a CBE in the context of a consultation, most aspects of which he did not dispute. The context similarly means that just because the complainant did not verbally communicate that she did not wish to continue with the breast health conversation cannot avail the appellant to dismiss this conduct as an error in judgement falling short of malpractice.
Complainant G
[85] The seventh ground of appeal was that the Tribunal had erred in treating the conduct complained of by complainant G as amounting to misconduct. This complainant saw the appellant in May 2016 about her asthmatic condition, and was accompanied by her 14 year old daughter. The complainant’s evidence was that, after addressing her concerns about her asthma, she was asked about breast examinations three or four times after she first said no, that the appellant “just wouldn’t take no for an answer” and that she had been emphatic in rejecting his further attempt to discuss the topic after her daughter had been excluded from the room. After her daughter had returned to the room, the topic was raised by the appellant again.
[86] The patient records suggested that the complainant had not had a breast check for quite a few years, so the appellant considered it necessary to emphasise to her the importance of breast health. On appeal, Mr Stevens conceded that with hindsight the appellant had failed to pick up the complainant’s reluctance to discuss the issue. With respect, that is something of an understatement. I accept the PCC’s submission on this ground of challenge that the appellant had persisted with the topic to an extent that raises the spectre of harassment and certainly fails to respect the patient’s autonomy, with the appellant appearing to be oblivious to the power imbalance between doctor and patient.
[87] I do not accept there was any error in the Tribunal ranking this as an instance of professional misconduct.
Complainant H
[88] The eighth to eleventh grounds of appeal arise out of the appellant’s May 2017 consultation with complainant H. The consultation was in the evening, the complainant having requested a repeat prescription and her regular doctor not being available. The complainant had had a mammogram the previous year, although the appellant made the point that it was approximately six months later than at the recommended two yearly interval. The appellant raised matters of breast health with complainant H and, without offering a chaperone, conducted a CBE. During the examination, the appellant commented “for your age, they’re quite full”. She did not think it was right for him to make such a comment. On leaving the consulting room, she found the reception area in darkness and no one else in attendance.
[89] During the consultation, the appellant had also offered to perform a cervical smear. She commented that she usually got a text reminder when she was due for a smear test, but had not received one. She declined because she always had a nurse present. No record was made in the notes of conducting a CBE or offering to conduct a cervical smear.
[90] This complaint followed approximately one year after the appellant had addressed concerns raised with him by those managing the practice about his initiating matters of breast health with female patients during consultations arranged for other matters. That had resulted in the written undertaking given to the practice by the appellant in June 2016 that he would utterly avoid raising the issue of breast health unless the matter was raised by the patient herself. That undertaking was subject to an exception in cases where there was a clear or plain clinical indication, in which event the appellant undertook to “tread very carefully making quite sure the patient was wanting to review that issue”.
[91] The Tribunal considered it constituted malpractice by the appellant to initiate a discussion about breast cancer prevention in breach of the undertaking he had provided to his employer. Although contested by the appellant, the Tribunal found
that he had not offered for complainant H to have a chaperone present during the CBE. It also accepted the complainant’s version of the comment by the appellant about her breasts during the CBE, the Tribunal finding that to be malpractice bringing discredit to the profession. The appellant admitted that he had not recorded the CBE in the notes of the consultation.
[92] The first of the criticisms of these findings is that the appellant’s discussion on breast health and the conduct of the CBE should not have been treated as a breach of the undertaking. Rather, Mr Stevens argued that there was sufficient cause for it to be raised for it to come within the exception in the terms of the undertaking. If the exception did not apply, then the undertaking was expressed in unreasonable terms, to which he should not be held.
[93] The PCC pointed out that when this issue was initially raised with him, the appellant acknowledged that the conduct breached his undertaking. He wrote to the partners of the practice on 7 June 2017 very shortly after the complainant had raised the issue, apologising in fulsome terms:
I am also sorry to you, for having breached my written commitment to the practice. There is no excuse for this. I am taking this very seriously and am willing to comply with any further undertaking regarding these matters.
[94] The appellant has subsequently disavowed both the terms of this apology, and the 2016 undertaking on the basis that both arose out of advice he felt obliged to follow, but which he has subsequently challenged. I am satisfied that the Tribunal was entitled to reject arguments raised before it that his conduct had not amounted to a breach of the undertaking. Given the circumstances, there is no basis for the contention that the Tribunal erred in finding the breach of the undertaking to be malpractice.
[95] The next criticism was of the Tribunal’s characterisation of the appellant’s failure to offer a chaperone as professional misconduct. Mr Stevens submitted that it was a matter of inadvertence or oversight in circumstances where the appellant had avoided raising breast health issues in the year since providing the undertaking.
[96] Again, when this component of the particular in respect of complainant H is assessed in context, the failure to offer a chaperone was sufficiently serious to be treated by the Tribunal as professional misconduct.
[97] On the finding that the appellant had made an inappropriate comment about complainant H’s breasts during the CBE, Mr Stevens submitted that the Tribunal ought to have assessed it differently and made a specific finding on the appellant’s explanation. The appellant accepted, with hindsight, that he should have clarified what he meant and, had he been asked at the time, would have explained that breasts in women over 50 tend to shrink. What he observed was dense tissue and fullness of the breast which equates, in his view, to an increased risk of breast cancer. Mr Stevens argued that if the Tribunal had accepted the explanation, then the appellant’s failure to adequately explain the comment that had caused offence could not correctly have been ranked as malpractice bringing discredit to the profession.
[98] In responding for the PCC to this ground of appeal, Ms Miller submitted that it was entirely improper for the appellant to seek to blame the complainant for a possible misunderstanding of the comment she found offensive. When the appellant’s explanation was put to her in evidence, the complainant firmly rejected the prospect of a miscommunication.
[99] The comment was unexpected, uttered whilst the complainant was especially vulnerable in an undressed state, and by a practitioner who is not her usual doctor during an evening appointment. I agree with the PCC that the Tribunal was not required to treat this aspect of the complaint as less serious because complainant H did not invite the appellant to clarify what he meant. The Tribunal did not err in this respect.
[100] The Tribunal’s findings on the particulars arising out of complainant H’s complaint included criticism of the appellant for failing to appreciate, in light of the lateness of the hour, that other personnel were likely to be absent from the premises. That failure was separately found by the Tribunal to warrant disciplinary sanction “to maintain standards in the profession and for protection of the public in similar
circumstances”.22 That criticism was not raised by any of the detailed sub-particulars of the charge in relation to this complainant. It was therefore outside the bounds of the case the appellant had to answer. In addition, the criticism levelled at the appellant was inconsistent with his uncontroverted evidence that he was unaware that all other staff had left the premises and was surprised and annoyed to discover this at the end of the consultation. The practice manager accepted that the departure of the receptionist before the last consultation was finished was an administrative failing.
[101] It follows that this criticism of the appellant by the Tribunal was not warranted and ought not to have been included in its decision. I return to the relevance of this part of this ground of the appeal being upheld at the end of my analysis of all the grounds.
Complainant F
[102] The twelfth and thirteenth grounds of appeal challenged findings by the Tribunal in respect of complainant F. At the time of the consultation in April 2015 she was 15 years old and had requested an appointment about a throat infection. Sub-particulars of the charge alleged that the appellant asked the girl whether she was sexually active and whether she masturbated, as well as telling her to consider masturbation.
[103] The appellant contends that the manner in which he broached the subject of sexual intercourse with complainant F was not materially less sensitive than a model approach offered in expert evidence for the PCC. He was responding to a note of a previous consultation by her regular doctor that she had felt compelled to have sex. On the appellant’s view, it was purely a matter of style, and his manner being different from the suggested approach could not be malpractice bringing discredit to the profession. Whilst other doctors may have approached the topic somewhat more sensitively, that difference in style was not a basis for disciplinary action.
[104] As to a discussion about masturbation, as complainant F claimed it had occurred, Mr Stevens submitted there were numerous indications of such inadequate
22 Tribunal decision at [287].
reliability of her recall about it that the Tribunal was wrong to reject the appellant’s different explanation for the conversation. Arguably, it ought to have followed that the three sub-particulars about the discussion on masturbation could not have been found to be made out.
[105] The PCC characterises complainant F’s evidence as establishing that the appellant raised the prospect of her feeling compelled to have sex in an insensitive and confronting way. Arguably, the appellant was not entitled to assume that the topic had been dealt with in that direct way in the previous consultation with her regular doctor, from the terms of the note summarising that prior consultation. It might, for example, have been broached in an indirect or tangential way. On the PCC’s analysis, the example of how the topic might be broached that had been given in evidence by Professor Arroll was markedly different and justified the adverse finding of the Tribunal.
[106] As to the competing versions on the discussion about masturbation, the PCC rejected Mr Stevens’ criticisms of the reliability of the complainant, and submitted that she had provided a credible and reliable narrative for her recollection of the terms in which that discussion occurred.
[107] The appellant’s challenge to the Tribunal’s finding against him on how he raised the complainant’s sexual experience suggests a lack of understanding of the appropriate boundaries for initiating discussion with a 15 year old girl who was not his patient. Her first complaint (as conveyed the same evening by her mother) and the terms of her evidence to the Tribunal make it very clear that the subject was raised by him quite inappropriately, unnecessarily, and in a way that he should have appreciated would offend and likely alienate the patient. There was ample justification for the Tribunal’s decision that disciplinary consequences should follow.
[108] Mr Stevens somewhat overstates the extent to which complainant F was uncertain or unclear about matters when he cross-examined her. Certainly, the transcript records that she was clear about the sequence in which the appellant questioned her about previous sexual experience, and about there being positive reasons to consider masturbation. Perhaps the most qualified of her recollections was
when Mr Stevens asked her whether the appellant had said to her that masturbation is the better option than having casual sex, to which she replied:
I don’t know whether he said it in those exact words but that was what was implied.
[109] Mr Stevens questioned the reliability of complainant F’s narrative in evidence by contrasting it with the different version she dictated to her mother, for her mother to write an email of complaint to the practice on the night of the appointment. In the mother’s narrative, she attributed to the appellant:
… pleasure yourself instead of doing what you did last time (or something along those lines).
[110] I do not accept that the different terms in which the complainant’s mother elected to record the appellant’s comments casts doubt on the complainant’s reliability. Given the circumstances of embarrassment for a 15 year old recounting the events on the same day to her mother, knowing her mother is recording them for a communication to the doctor’s practice, a somewhat different expression of the terms is readily understandable.
[111] I am not persuaded that the Tribunal made any error in finding the three sub- particulars about the appellant’s discussion with complainant F about masturbation were made out.
Professional misconduct not made out
[112] The fourteenth ground of the appeal was that the Tribunal had erred in finding that the extent to which the complaints were made out constituted professional misconduct by the appellant. Mr Stevens urged that must be so by a correct application of the legal standard, as considered in previous decisions. Arguably, if the correct standard was applied, then the conduct criticised was not serious enough to sustain a finding of professional misconduct.
[113] Mr Stevens submitted that the evidence failed to establish that any acts or omissions were malpractice or negligence or brought discredit to the profession and amounted to professional misconduct by virtue of being significant enough to warrant
disciplinary sanction. None of the appellant’s conduct could be described as “serious conduct”, falling seriously short of that considered acceptable, and thus significant enough to warrant disciplinary sanction. Even if there was no clinical justification for raising breast health issues or performing CBEs, the appellant’s actions would not, given the reasons for his conduct and the body of opinion that supported his actions, amount to serious conduct falling seriously short.
[114] Mr Stevens drew on an observation in Williams v A Professional Conduct Committee of the Medical Council, where Wylie J emphasised that a finding of professional misconduct “is a significant matter, which is reserved only for serious conduct”.23 Conversely, Ms Miller referred to the observations of Courtney J in Martin v Director of Proceedings:24
… While the criteria of “significant enough to warrant sanction” connotes a notable departure from acceptable standards, it does not carry any implication as to the degree of seriousness. Given the wide range of conduct that might attract sanction, from relatively low-level misconduct to misconduct of the most reprehensible kind, the threshold should not be regarded as unduly high.
…
[115] The parties to the appeal were agreed on the well-established two-step process for assessing whether conduct in issue constitutes professional misconduct. There is first to be an objective assessment of whether the practitioner departed from acceptable professional standards. Secondly, whether that departure was significant enough to attract sanction for the purposes of protecting the public.25
[116] Mr Stevens urged the adoption of the approach of Kirby P in Pillai v Messiter [No 2], which suggests that more is required than professional incompetence or deficiencies in practice.26 However, that approach was rejected by Courtney J in Martin, with her Honour’s decision being adopted by Moore J in Johns v Director of Proceedings, who considered that in the New Zealand paradigm the test from Pillai was too onerous.27
23 Williams v A Professional Conduct Committee [2018] NZHC 2472 at [36].
24 Martin v Director of Proceedings [2010] NZAR 333 at [32].
25 H v Director of Proceedings [2018] NZHC 2175 at [19] (reflecting the approach in McKenzie v Medical Practitioners Disciplinary Tribunal [2004] NZAR 47 (HC) at [71].
26 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 (NSWCA).
27 Johns v Director of Proceedings, above n 5, at [82].
[117] In rejecting the criteria in Pillai as incorrectly constraining the Tribunal’s assessment, Courtney J in Martin observed that to identify the threshold for disciplinary action it is essential to recognise the assessment is one of degree. The gravity of the misconduct should be reflected in the penalty rather than in the actual finding of professional misconduct.
[118] Given the number of judicial descriptions of the task, I content myself with adopting that of Moore J in Johns:28
[83] As Courtney J observed, given the wider range of conduct which might attract sanction in this jurisdiction the threshold should not set unduly high. It is a threshold to be reached with care having regard to the purposes of the Act and the implications for the practitioner. Consistent with Ms Wills’ submission the measure of seriousness is to be reflected in penalty. Furthermore, as Courtney J noted, the task for the Tribunal must first be to consider whether the practitioner has departed from the acceptable standard required of a professional in the circumstances. What that standard is will be determined by reference to the conduct of other competent and responsible practitioners and the Tribunal’s own assessment of what is appropriate conduct assessed against the purposes of the Act. If the Tribunal is satisfied that the practitioner has departed from the standard expected it must then consider whether the departure is significant enough to warrant sanction.
…
[85] So, while I agree that Martin is the correct approach, Ms Wills’ submission that considerations of gravity and seriousness do not form part of the threshold inquiry cannot be correct. Those considerations form part of the threshold inquiry but only to the extent required to ascertain whether the breach is of sufficient importance to merit recording a finding of professional misconduct against the practitioner. If the threshold is met, then a more rigorous examination of gravity and seriousness is required in the assessment of the appropriate penalty.
[119] Ms Miller made two further points about the two-step test. First, that the assessment is an objective one by comparison with appropriate professional standards, with no scope to have regard to subjective explanations for the conduct by the professional involved. That was the view taken by Venning J in McKenzie v Medical Practitioners Disciplinary Tribunal.29 Mr Stevens submitted that there has been qualification to that approach in E v Director of Proceedings, where Ronald Young J observed:30
28 Footnotes omitted.
29 McKenzie v Medical Practitioners Disciplinary Tribunal, above n 25, at [71].
30 E v Director of Proceedings (2008) 18 PRNZ 1003.
[24] Counsel agree that once the Tribunal have found the relevant facts then the decision as to whether a doctor’s actions are negligent or malpractice is an objective assessment. Counsel differed, however, as to whether the Tribunal can take into account the personal circumstances and knowledge of the appellant in deciding whether it is satisfied the practitioner’s actions justify a disciplinary sanction. As the quote from McKenzie in the Tribunal's judgment illustrates, Venning J’s view was that subjective considerations of the personal circumstances or knowledge of the practitioner had no part to play in this second assessment.
[25] I would not be prepared to go quite so far as Venning J. I consider there may be personal circumstances which substantially affect the seriousness of the particular negligence or malpractice which are therefore relevant to the decision as to whether a disciplinary sanction is required. A failure to consider these in appropriate circumstances could constitute a failure to take into account a relevant consideration.
[26] It is open to the Tribunal to conclude a practitioner has been negligent but conclude, given the explanation received from the practitioner, that the negligence (or malpractice) is not sufficiently serious to justify disciplinary intervention.
[120] I accept that in the context Ronald Young J was contemplating, a practitioner’s explanation for conduct may be relevant to ranking its relative seriousness. However, I am not persuaded in the present circumstances that the appellant’s belief in an approach that was clearly contrary to current practice, and where he persisted over a period of years despite warnings that it was not acceptable, constitutes the type of subjective considerations that might influence the relative seriousness attributed to the conduct.
[121] Ms Miller’s second point was that the particulars of the charge were alleged to amount to professional misconduct either separately or cumulatively, and it is appropriate to weigh the character of the conduct cumulatively to assess whether the totality of the conduct constitutes professional misconduct.31 In the summary of its conclusions on individual particulars of the charge, the Tribunal observed:32
There are several aspects that separately require disciplinary sanction, several that cumulatively require that sanction, and several that have been found not to be made out.
31 Citing the approach of Simon France J in Vatsyayann v Professional Conduct Committee
HC Wellington CIV-2009-485-259, 14 August 2009 at [75]–[82].
32 Tribunal decision at [308].
[122] In dealing with the thorough challenges to the vast majority of the individual findings, I have held that the Tribunal’s findings were, in all but one particular, justified. In measuring those findings against the two-step standard, I am satisfied that they are both sufficiently serious to warrant disciplinary sanction individually, and inarguably that all of the particulars that are made out also warrant disciplinary sanction when assessed cumulatively.
[123] Turning to the application of the two-step standard more generally, and beginning with the first step, I note that the charge arose out of a course of relatively determined conduct by the appellant over a period of six years. During the vast majority of that time he was on notice that his practice of initiating conversations on breast health and conducting CBEs, when the topic was unrelated to the medical concerns about which the patients were being seen, was contrary to the New Zealand standards governing his practice. It was also contrary to the standards adopted by the medical practice for which the appellant was working. Therefore I consider that objectively the appellant’s actions were a departure from acceptable professional standards.
[124] Turning to the second step, I note that the appellant’s actions led to complaints from eight patients of other doctors in the practice and that he persisted (in one instance) with his conduct, contrary to proper practice and after undertaking to desist from it. Therefore I am satisfied that the departures from acceptable standards are certainly more than serious enough to warrant a finding of professional misconduct. That threshold was clearly reached. Accordingly, I agree with the Tribunal that professional misconduct was made out.
Misapplication of s 100(1)(a) and (b) of the Act
[125] The fifteenth ground of appeal is that the Tribunal interpreted incorrectly the conduct which might constitute professional misconduct under s 100(1)(b) of the Act. Arguably, the Tribunal wrongly conflated conduct as if it could constitute professional misconduct under both s 100(1)(a) and (b) on numerous of the particulars and sub- particulars of the charge.33 Mr Stevens argued that the analysis erred because
33 Those provisions are set out at [12] above.
s 100(1)(a) and (b) are to be interpreted as addressing distinct and discrete forms of conduct.
[126] Mr Stevens relied on the analysis of s 100 by Courtney J in Martin where the Judge undertook an analysis of the component concepts of “professional” and “misconduct”. In dealing with the notion of what was professional, Courtney J considered the interpretation of a previous statutory regime by McGechan J in Cullen v The Preliminary Proceedings Committee.34 Courtney J reasoned:35
[18] In the context of the [current act], however, McGechan J’s interpretation of professional misconduct cannot apply. It is clear from the definition of “scope of practice” that only s 100(1)(a) is intended to relate only to conduct that is part of the conduct of the practitioner’s profession. Under the previous schemes such conduct could have been reflected in any of the three charges depending on the gravity of the conduct. In comparison, s 100(1)(b) is clearly directed towards misconduct outside the scope of professional practice, which would previously have been reflected only in a charge of conduct unbecoming. On McGechan J’s interpretation “professional” would be otiose in s 100(1)(b).
[19] The only reasonable interpretation of s 100(1)(a) and (b) is to treat “professional” as meaning (contrary to McGechan J’s interpretation) a person who practises a profession. Interpreting the word in this way would be consistent with the defined terms of “practise a profession” and “health profession” in s 5(1). It would also accommodate the obvious distinction intended between misconduct in the course of professional practice in s 100(1)(a) and misconduct outside the scope of professional practice in s 100(1)(b). I therefore conclude that “professional misconduct” in s 100(1)(a) and (b) means unacceptable or improper behaviour by a person who practises a profession, as that phrase is defined in s 5(1).
[127] Mr Stevens applied this reasoning to argue that if the conduct of a practitioner arose in the scope of his or her practice, then professional misconduct could only be made out under s 100(1)(a). Mutually exclusively, if the alleged misconduct arose in a context outside the practitioner’s practice, then such conduct could only constitute misconduct under s 100(1)(b). Mr Stevens submitted that the mutual exclusivity of paras (a) and (b) was supported by the Court of Appeal’s analysis in F v The Medical Practitioners Disciplinary Tribunal.36 However, that appeal concerned the provisions of the Medical Practitioners Act 1995 and in particular the concept of conduct
34 Cullen v The Preliminary Proceedings Committee HC Wellington AP225/92, 15 August 1994.
35 Martin v Director of Proceedings, above n 23 (footnotes omitted). The definition referred to of “scope of practice” is in s 5(1) of the Act.
36 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA) at [59], [60], [67]– [71].
unbecoming which does not feature in the present Act. The reasoning is therefore not helpful.
[128] Ms Miller invited the analysis in Martin to be considered in light of the approach of Whata J in Vohora v A Professional Conduct Committee.37 In that appeal, a pharmacist had been charged with misconduct either under s 100(1)(a) or, in the alternative, under s 100(1)(b). Mr Vohora challenged findings of misconduct made against him under both subsections when he had defended the case on the basis that it would be one or the other. Whata J accepted that was procedurally irregular. The Judge then found:38
[79] But I am not concerned about mixing and matching of the elements of the alleged misconduct for the purposes of the s 100 evaluations. I agree with Mr McClelland that the Tribunal enunciated the thresholds for each subsection and then applied them. I also consider that the conduct was amenable to findings under both subsections. Mr Vohora was engaged in a principled protest, directly challenging the policy of the Pharmacy Council to require SOPS. It was designed to discredit that policy and therefore the Council. It is not difficult to see why a charge under s 100(l)(b) was therefore appropriate. Furthermore Mr Withnall’s complaint that the particulars A, B and C must fall under one or other category of professional misconduct with respect conflates “cause” and “effect”. The cause of complaint may well relate to professional conduct within the scope of practice. The effect may nevertheless bring the profession into disrepute. Plainly the two types of misconduct are not co-extensive. But the critical issue is whether the conduct amounts to malpractice and/or brings the profession into disrepute. While no clear line is drawn by the Tribunal between the reasons for the respective findings under s 100(l)(a) and (b), I am satisfied that the decision identifies reasons for reaching its view that both thresholds are met. I therefore see no substantive error in this regard.
[129] I am not satisfied that the distinction drawn by Courtney J in the circumstances in Martin is necessarily inconsistent with the approach to s 100(1)(a) and (b) adopted by Whata J in Vohora. In any event, as the challenge arises in this case, I agree with the approach adopted by Whata J. In various contexts, conduct by a medial practitioner arising as part of his or her practice might justify a finding of misconduct under both heads. The Tribunal must deal with charges on the precise terms in which they have been laid, but where (as here) the misconduct is alleged to constitute such under either or both of (a) and (b), it is open to the Tribunal to consider the conduct as constituting professional misconduct under either or both paragraphs.
37 Vohora v A Professional Conduct Committee [2012] NZHC 507, [2012] 2 NZLR 668.
38 Footnotes omitted.
[130] The breadth of s 100(1)(b) means that a health practitioner cannot avoid the prospect of disciplinary proceedings for conduct arising outside his or her practice, but that does not mean that s 100(1)(b) will not apply in appropriate cases where the misconduct does arise within the practitioner’s sphere of practice. The principal purpose of the Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.39 An example cited by Ms Miller was Williams, where the conduct of the doctor in question involved the prescribing of a certain drug to relevant patients which was appropriately seen as bringing discredit to the medical profession.40
[131] The appellant cannot make out any error in the manner in which the Tribunal has applied the provisions in s 100(1)(a) and (b).
Cultural differences and language issues
[132] The sixteenth ground of appeal was that the Tribunal ought to have taken into account cultural differences, and the fact that the appellant speaks English as a second language, with a heavy accent. The appellant and his wife gave evidence of cultural differences between life and the working conditions of a general practitioner in Israel, and the culture they have encountered in New Zealand. The appellant argued it was relevant that Israelis are forthright to the point of bluntness in their communications. Mr Stevens submitted that, given his background, the appellant could reasonably expect that any of the complainants who found his approach inappropriate would have said so directly, and straight away. In a number of the particulars where criticisms were of the appellant continuing to raise matters about breast health, the suggestion was that the appellant ought to be excused for not appreciating more subtle signals.
[133] A second difference raised by the appellant before the Tribunal was the position of a family doctor in dealings with all members of a family group in Israel. The appellant’s contention was that general practitioners in Israel are expected to initiate
39 Health Practitioners Competence Assurance Act 2003, s 3(1).
40 Williams v A Professional Conduct Committee, above n 23, at [102].
discussion with patients about medical issues that the patient might have difficulty talking about, and to provide advice on them.
[134] The Tribunal acknowledged these points in the evidence, and commented that all such evidence came only from the appellant and his wife.41
[135] It was not entirely clear what different approach Mr Stevens contended the Tribunal should have adopted to take account of these cultural differences, assuming it ought to have accepted the extent of them as described by the appellant and his wife. The complaints were to be assessed by reference to the standards of reasonably competent practitioners in New Zealand, dealing with New Zealand patients. The conduct complained of is to be measured by the Tribunal against what it perceives to be reasonable standards of competence and behaviour by other New Zealand practitioners in similar circumstances.
[136] I did not take Mr Stevens to contend that patients consulting with the appellant should have expected lower or different standards than would have applied had they seen their regular doctors, on account of the appellant’s cultural differences. Certainly, the obligations he assumed on registration in New Zealand from 2009 were to provide competent advice by reference to New Zealand standards. Far from expecting patients to make allowances for a doctor’s different cultural norms, the obligations assumed on registration require a doctor to be sensitive to patients’ different cultural values.42 I accordingly can see no scope for criticism of the Tribunal in not taking into account cultural differences when assessing whether the particulars of the charge were made out.
[137] A theme of the evidence of a number of the complainants was relatively how assertive the appellant was in controlling their consultations. Although the appellant did not accept that this reflected an attitude of “doctor knows best”, the Tribunal was entitled to find that his manner was inconsistent with respect for patient autonomy that is a feature of guidelines to practice in New Zealand but antithetical to what the appellant described as the Israeli approach.
41 Tribunal decision at [99].
42 See the MCNZ statement on cultural competence (August 2006).
[138] To the extent that these cultural differences might explain the extent to which the appellant conducted consultations differently from standards reasonably expected of New Zealand practitioners, that factor might legitimately have some bearing on the extent of penalties that were appropriate. That is a factor to be borne in mind dealing with other grounds of the appeal.
[139] Suggestions put to at least two of the complainants that the appellant’s heavy accent or use of English might have contributed to communication difficulties or misunderstandings were firmly rejected. By the time the Tribunal came to reach its decision, it had observed the appellant give evidence and contribute to other aspects of the 10 day hearing. It had also heard evidence from others who observed his conduct during the relevant period in practice. I am not satisfied that the Tribunal erred in not making concessions to the appellant on account of any inadequacy in his familiarity with English or the ability to be understood when communicating in it.
Name suppression
[140] The seventeenth ground of appeal is against the majority decision not to order suppression of the appellant’s name. A minority of one of the Tribunal members would have made an order for non-publication, being persuaded by the perceived extent of adverse impacts on the appellant’s adult children and his wife.
[141] Section 95 of the Act provides that hearings of the Tribunal are to be held in public, unless it orders otherwise. The Tribunal’s consideration of name suppression is to have regard to the interests of any persons and to the public interest. As with professional disciplinary proceedings in other contexts, the presumption in favour of open justice and transparency creates something of a presumption against name suppression.
[142] This aspect of the Tribunal’s decision was a matter of discretion and the preponderance of views is that appeals from decisions on name suppression ought to
adopt the approach in May v May,43 rather than that of a general appeal as prescribed in Austin, Nichols & Co Inc v Stichting Lodestar.44 Desirability of suppression of a practitioner’s name reflects a materially lower test than other contexts where the presumption of open justice can only be overridden if exceptional adverse consequences would follow.45
[143] The overall rationale of such disciplinary proceedings is to protect the health and safety of members of the public by ensuring the competence of those practising as health professionals. Every case will depend on its own circumstances and the nature of the conduct found to warrant disciplinary proceedings, including the relative risk of some repetition of it, is a material consideration. Given the terms on which the appellant sought to justify his conduct before the Tribunal, and the repetition of the vast majority of the same arguments on appeal, the prospect of further conduct of a similar type raises a concern that the public should know of the Tribunal’s decision about the conduct complained of.
[144] I am mindful that the conditions imposed by the Tribunal, which will remain in effect until April 2023, include the requirement for the appellant to have a female chaperone present when seeing female patients for any breast examination, and that notices are required in the waiting room and his consultation room at any place of work to inform patients of that requirement. Those are practical protections for members of the public who engage with the appellant in that context. They do not address the legitimate interest the general public has in knowing of the Tribunal’s ruling about this aspect of the appellant’s practice.
[145] The primary ground advanced for name suppression is the fear of disproportionate adverse consequences for members of the appellant’s family. At the time of the Tribunal hearing, he had two adult children at advanced stages of tertiary study, both related in different ways to the medical profession. The family name is an unusual one and the appellant argued that any publicity at all would link them to him.
43 May v May (1982) 1 NZFLR 165 (CA) at [169], [170]. The approach was adopted, inter alia, in N v Professional Conduct Committee of the Medical Council [2013] NZHC 3405, [2014] NZAR 350; McCaig v Professional Conduct Committee [2015] NZHC 3063 and Johns v Director of Proceedings, above n 5, at [159].
44 Austin, Nichols & Co Inc v Stichting Lodestar, above n 4.
45 Compare Johns v Director of Proceedings, above n 5, at [165], [166].
He expressed fears that the children’s career prospects would be unfairly prejudiced by adverse views of the children on account of the Tribunal’s findings against him.
[146] The appellant expressed similar concerns for his wife who works as a licensed immigration consultant. The appellant perceives harm would be done to her business reputation if there was publicity of the Tribunal’s findings against him. The appellant also deposed that the disciplinary proceedings have taken a substantial emotional and physical toll on his wife. Mr Stevens cited Ang v Professional Conduct Committee as an example of the impact on immediate family resulting from a name suppression decision.46
[147] Mr Stevens criticised the Tribunal’s majority decision for showing a misplaced confidence in the objectivity and thoroughness of reporting. The Tribunal assumed that any publication would have to refer to the charge and its components, including the PCC position that there was no suggestion of sexual motivation in the behaviour, and acknowledging the appellant’s reasons for acting the way he did. Assuming thorough and objective reporting in that way, the majority considered the public would then be able to make its own assessment on an adequately informed basis.47
[148] I accept this criticism. Sadly, there is a real risk that the newsworthy aspects of the Tribunal decision could be dominated by the implied overtones of sexually motivated misconduct by a general practitioner. Given the detail of the experiences of the complainants, a partially informed audience could well infer that an improper interest in sexual matters or even sexual gratification was the motivation for the conduct. I do not share the Tribunal’s optimism that all reporting of its decision would give appropriate prominence to the PCC’s acknowledgement that there was no suggestion of sexual motivation in the appellant’s behaviour. It is certainly to be hoped that the Tribunal proceeding would be responsibly reported, but I accept it was wrong for the Tribunal to rely on that being the case. The competing interests on suppression of the appellant’s name are to be assessed against the prospect that responsible reporting may not occur.
46 Ang v Professional Conduct Committee [2016] NZHC 2949 at [75].
47 Tribunal decision at [364].
[149] Whilst I have approached the challenge to this ruling by the Tribunal on a May v May basis, given the potentially material error it is preferable that I come to my own view on whether the appellant’s name should be suppressed.
[150] Apart from the concern at the real prospect for inadequate or misleading reporting, and the error by the majority of the Tribunal in rejecting such prospect, I do not find the grounds advanced by the appellant for a suppression order to be compelling. I consider he has overstated the risk of any material adverse consequences for his adult children in terms of their career prospects, and similarly in respect of his wife’s career. He and members of his immediate family are likely to have material levels of social embarrassment and dislocation but that is an ordinary incident of adverse findings in disciplinary proceedings against any professional person.
[151] Whether suppression is desirable therefore reflects a balance between the interest of the public to be adequately informed of the circumstances giving rise to complaints and the Tribunal’s findings in respect of them, and the chance that less than full and objective reporting risks a level of opprobrium for the appellant from an insinuation that there was some improper motivation for his conduct, when the PCC and Tribunal have accepted that was not the case.
[152] By a fine margin, I consider that the medical profession’s interests in open justice being reflected in its disciplinary proceedings prevails. As in most cases where suppression of the outcome of professional disciplinary proceedings is considered, non-publication runs the risk of others being wrongly implicated as the practitioner involved in such conduct. I am not persuaded that the outcome of the Tribunal proceeding is sufficient to deter the appellant in all circumstances from attempts to pursue his approach to breast health in the future,48 and accordingly the priority required to be given to protection of the public by publication of the outcome must prevail.
[153] Accordingly, the seventeenth ground of appeal challenging the refusal to grant name suppression cannot be made out.
48 In introducing this appeal, Mr Stevens described the appellant’s promotion of CBEs and his other aspects of breast health as an alternative that remained a valid point of view.
Imposition of unfair conditions
[154] In the eighteenth ground of appeal, the appellant challenged what he considered to be unwarranted conditions imposed on his future practice. The conditions included a requirement that he have a female chaperone present when seeing female patients for any breast examination and that any chaperone must be a registered health professional. The condition also stipulated that the chaperone was to be provided at the appellant’s cost, “with no additional cost to the practice for which [the appellant] is then working”.
[155] Mr Stevens submitted that this condition was an unwarranted interference in the appellant’s relationship with any employer, and that the Tribunal had no business in influencing that aspect of the appellant’s employment conditions.
[156] In responding to that criticism, Ms Miller submitted that such conditions accord with a regular practice of the Tribunal, the reason for which is to make absolutely clear that costs associated with implementation of such conditions are not to fall on the profession.
[157] If indeed that is the limit of the Tribunal’s concern, the appellant might reasonably expect the condition to be recast on terms that the cost of provision of chaperones is a matter to be resolved between the appellant and his employers, and in no circumstances are such costs to be a charge on the profession.
[158] The appellant also challenged the last of the conditions for practice that were imposed by the Tribunal, namely that the appellant was to meet the reasonable costs of any random audit undertaken at the discretion of the MCNZ to ensure compliance with conditions and any review of the notes about female patients who have undergone breast examinations. Mr Stevens characterised this as a “potential instrument of oppression”. He submitted that a fair outcome was for the MCNZ to share some portion of the costs of such audits. That was roundly rejected by Ms Miller, who submitted there was no basis for suggesting it could be an instrument of oppression. She submitted that the condition was reasonably imposed and it ought not to be policed at the cost of the profession. I accept that view.
[159] However, on the basis of the discussion at [157], I am persuaded that one aspect of the eighteenth ground of appeal is upheld and will return at the conclusion of the judgment to describe how that ought to be reflected.
Fine of $5,000 excessive?
[160] The nineteenth ground of appeal was that the Tribunal’s decision to impose a fine of $5,000 was excessive. Mr Stevens’ submissions addressed this point in tandem with his challenge to the extent of the costs order made against the appellant where the total pecuniary cost to the appellant was many multiples of the fine. His submissions were that, in effect, the fine could have been reduced to a de minimis amount given the punitive impact of costs orders of $160,000.
[161] In separately responding on the challenge to the quantum of the fine, the PCC made the following points:
· the Tribunal’s jurisdiction is to impose fines of up to $30,000;
· fines range from $500 for minor offences through to $25,000 for cases of serious misconduct;
· appeals have been allowed where the Court perceives it necessary to maintain proportionality, or because the fine was clearly out of line with comparable decisions;49
· other cases involving inappropriate or unnecessary physical examinations that were referred to the Tribunal involved fines ranging between $1,000 to $5,000 where the scale of conduct here was more serious than in those others.
[162] Ms Miller submitted it was important that the quantum of the fine sent a deterrent signal. In this case, the appellant had persisted with his conduct contrary to practice standards known to him and otherwise respected by the practice for which he
49 Harman v Director of Proceedings HC Auckland CIV-2007-404-3732, 12 March 2009 at [162],
E v Director of Proceedings, above n 30, at [58].
was working. He also persisted after providing the undertaking so that a material level of fine was well justified.
[163] On these considerations, I am readily satisfied that there is no error in the Tribunal fixing the fine at $5,000.
Challenges to the reasonableness of costs orders
[164] In the twentieth ground of appeal, and one aspect of the twenty second ground of appeal, the appellant disputed the jurisdiction of the Tribunal to order costs of the type that it did. Those jurisdictional challenges were not pursued.
[165] The jurisdiction in respect of costs and expenses is included in s 101(1)(f) of the Act dealing with penalties.50
[166] The Tribunal’s decision included an extensive consideration of numerous line by line challenges to the components of the costs, recovery of which the PCC sought for its investigation and the costs of the Tribunal hearing. There appears to be something of a presumption in Tribunal jurisprudence that the starting point for a costs order against a practitioner found guilty of professional misconduct is 50 per cent of the actual costs incurred.51 The Tribunal’s decision was that the appellant was to pay a total of $160,000, being 50 per cent of the total sum of $320,000, which the Tribunal had reduced from total claims presented for its own costs and those of the PCC of
$362,123. The final award divided the sum of $160,000 into $102,400 towards the costs of the inquiry and $57,600 towards the costs of the Tribunal hearing. There was no clear explanation for that somewhat disproportionate allocation of the appellant’s liability to contribute to 50 per cent of a rounded down total.
[167] As a discretionary element of the Tribunal’s decision, I incline to the view that the appellate approach in May v May ought to apply,52 but on the analysis I have undertaken applying an Austin, Nichols standard would not alter the outcome.
50 Set out in [13] above.
51 Tribunal decision at [414]–[416], citing decisions including Vatsyayann v Professional Conduct Committee of New Zealand Medical Council [2012] NZHC 1138 at [34].
52 See Johns v Director of Proceedings, above n 5, at [159].
[168] In challenging the quantum, Mr Stevens’ overarching challenge to what he claimed was an unreasonable quantum was that the threat of such a significant liability following from an unsuccessful attempt to defend disciplinary proceedings had a serious and unwarranted chilling effect on a practitioner’s election to do so. The weight of a professional juggernaut brought to bear on an individual arguably imposed unfair and improper pressure for practitioners to compromise charges to which they might have a defence, for fear of the ruinous financial consequences should they fail.
[169] As to the presumptive starting point of 50 per cent of costs incurred, Mr Stevens submitted the principled bases of the appellant’s challenge to the medical profession’s current approach to monitoring breast health reflected a matter of public interest that deserved to be aired. That factor should have been reflected in a reduction from the presumptive starting point. I do not accept that as a relevant consideration on quantum, given the duration and nature of his non-compliance.
[170] Mr Stevens instanced the disproportionality of the cost of the procedure by referring to the inclusion of such items as the cost of 70 lunches and 30 dinners for relevant Tribunal participants over the 10 day hearing. Among other criticisms was that, from the details in the transcript, the hearing took a total of 54 sitting hours, whereas the charges claimed 80 hours for members’ time.
[171] Mr Vincent had filed written submissions responding to various arguments disputing the jurisdiction of the Tribunal to make costs orders against a practitioner for various heads of cost that had been included. It became unnecessary for him to address those submissions once Mr Stevens abandoned the jurisdictional challenges.
[172] Mr Vincent did respond on one aspect of the challenge to quantum of the costs claimed for the executive officer who was allocated to the proceeding and was responsible for administrative and logistical arrangements. Mr Vincent described the structure of the system supervised by MCNZ, which involves the allocation of an individual executive officer to a proceeding, with the contemplation that if costs orders are made, the cost of those services will be included among those sought to be recovered.
[173] Mr Stevens did not seriously contest the jurisdiction of the Tribunal to quantify and order recovery of costs of this type.53 On this and other aspects of the costs, details of which were provided, I am not in a position to challenge individual items in what was a relatively substantial undertaking. I expressed sympathy for the appellant’s concern that he had been caught up in a juggernaut, but that is the regime as it exists.
[174] Mr Stevens was also critical of the extent of costs of the PCC for which it sought 50 per cent recovery. This included an amount of almost $190,000 for legal costs, for two counsel involved in prosecuting the case with a combined hourly rate of
$595. Mr Stevens criticised the component of some $63,000 of the legal fee component, being recovery of costs of legal staff employed by the MCNZ.
[175] The PCC’s response was to the effect that the Tribunal approached costs orders on the basis that the costs of the disciplinary process to the profession ought to be alleviated to a relevant extent by members involved in the proceedings, where findings of misconduct have resulted. The scale of the costs incurred in this case was a reflection of the extent of the complaints, and particularly the extent to which the appellant elected to challenge virtually every component of every particular and sub- particular, and retained senior counsel to effectively leave no stone unturned.
[176] As to the component of the PCC’s legal fees incurred by MCNZ’s employed lawyers, Ms Goodhew explained that those lawyers are funded on a basis that allocates their salary and overhead costs to specific investigations and prosecution of disciplinary proceedings to which they are assigned, as part of an overall cost structure within the MCNZ. That cost structure is not expected to be sustained entirely by the profession, and is dependent on partial recovery where prosecutions end in an entitlement to an order for costs.
[177] On that aspect of the costs, I acknowledge that in comparable circumstances in civil litigation, a successful party represented by its own employed solicitors will not be entitled to a costs order as it would if external solicitors had been retained.54 I took
53 The jurisdiction is derived from s 104 of the Act, which Mr Vincent distinguished from the allocation of liability for the Tribunal’s general administration costs, provided for under s 103A, introduced with effect from 12 April 2019.
54 McGuire v Secretary for Justice [2018] NZSC 116 at [55].
Ms Goodhew’s explanation to take the costing arrangements with her employer to distinguish them from that. In any event, the costs regime under the Act applying in this case is expressed more broadly, and does not need to conform with costs rules under the High Court Rules 2016.
[178] Mr Stevens submitted that the appellant was of relatively limited financial means and ought not be fixed with so substantial a liability as to reduce what are limited prospects at his age (62) to rebuild a retirement fund. Ms Goodhew pointed out that the Tribunal had afforded the appellant time to provide an affidavit attaching a statement of his assets and liabilities, but he did not respond. She disputed that there was evidence justifying any submission that he was of “very limited” financial capacity.
[179] The appellant did complete an affidavit on 17 December 2019 providing an unverified summary of his financial position. It does not justify a submission that the appellant has a very limited capacity to meet a substantial costs liability.
[180] Having reviewed all of Mr Stevens’ criticisms of the quantum, and having regard to the somewhat arbitrary reduction made by the Tribunal of some $42,000 before arriving at the amount for which the appellant was rendered liable for 50 per cent, I am not persuaded that the challenge to the costs orders made by the Tribunal can be made out.
PCC cross-appeal
[181] The PCC pursued a cross-appeal against the Tribunal’s decision not to impose a period of suspension on the appellant as an aspect of the penalty.
[182] In considering penalty, the Tribunal considered that the seriousness of the conduct warranted a period of suspension. The Tribunal recognised a need for further education and self-analysis by the appellant as well as deterrence and setting standards to protect the public. At the time of the hearing before the Tribunal, the appellant’s attitudes left the Tribunal in doubt that he had fully appreciated the need for change in the way he conducted consultations.
[183] However, the Tribunal was persuaded that the period of approximately 11 months during which the appellant was precluded from practising would justify a reduction in what would otherwise be the period of suspension, and then decided that the period out of practice justified reducing to zero what would otherwise have been the period of suspension.55
[184] The PCC contends that approach was in error, and seeks a period of suspension of up to 12 months.
[185] The PCC disputes that the period the appellant spent out of practice can all be attributed to the disciplinary steps taken against him. The complaints against him were made in mid-June 2017, and on 8 July 2017 he voluntarily agreed not to practice. His employment was terminated with effect from 12 July 2017 and the MCNZ imposed interim conditions from 26 October 2017. Those conditions restricted the appellant to consulting only with male patients. The appellant contends that condition was so restrictive that he was unable to secure employment. He appealed the conditions imposed by the MCNZ to the District Court, and by agreement in mid-May 2018 those conditions were varied so that he could see female patients, but subject to having a chaperone present. Following that, the appellant commenced part-time employment from 1 June 2018 and full-time employment from 1 July 2018. The PCC takes the point that for the first three months of that 11 month period the appellant was voluntarily out of practice and also questions whether it was the imposition of conditions by the MCNZ that was the complete cause of his inability to obtain alternative work. He was facing dismissal from his employment because of the breach of the undertaking he had given the year before, when he ceased practice. Arguably, that factor would have adversely impacted on his ability to get other jobs.
[186] Given all the circumstances, that is a somewhat harsh point to take against the appellant. I consider it was appropriate for the Tribunal to take into account the full extent of the period between the appellant leaving his previous employment and being freed of the most stringent conditions imposed by the MCNZ, enabling him to commence practice again some 11 months later.
55 Tribunal decision at [338].
[187] The cross-appeal is brought on the basis that the seriousness of the misconduct clearly warranted a period of suspension (as accepted by the Tribunal) and that it was not a case in which anything like a day-for-day credit ought to have been allowed for the period during which the appellant did not practice for reasons other than a suspension imposed by the Tribunal. That submission is somewhat at odds with the criticism of an earlier Tribunal decision where substantially less than a day-for-day credit had been allowed. In McCaig v Professional Conduct Committee,56 Palmer J observed:
[49] In this regard, I consider the Tribunal was wrong. It’s [sic] reasoning for crediting Dr McCaig with only three months off her suspension because she had nine months off work as a practitioner is arbitrary. It is not supported by the principles by which penalties are set and it is contrary to the principle of rehabilitation and the imposition of the least restrictive penalty that can be reasonably imposed in the circumstances. …
[188] Ms Goodhew, who presented the submissions on the cross-appeal, distinguished the outcome in McCaig where, on appeal, the Court increased the discount by one month (from three to four months) in the reduction of a nine month period of suspension. In that case, credit was given for mitigating circumstances including the doctor’s extensive co-operation with the Tribunal. She submitted that could not be the case here.
[189] Ms Goodhew revisited the relative seriousness of the conduct, and the need for a deterrent signal that reflected a measure of consistency with other cases. In addition, she cited the Tribunal’s assessment that a period out of practice to enable reflection by the appellant on the need to alter his approach to practice was not lessened by the 11 months out of practice before the Tribunal hearing. The stance adopted by the appellant before the Tribunal, claiming the correctness of his position in virtually all respects, arguably reinforced the need for a suspension as an opportunity for him to reconsider the deficiencies in his approach in light of the Tribunal’s findings.
[190] Mr Stevens countered this submission by pointing to the strong support the appellant had from practice nurses familiar with his approach to practice throughout the period to which the particulars of the charge related, the number of enthusiastic
56 McCaig v Professional Conduct Committee, above n 43.
endorsements by patients entirely happy with his services throughout that period, and the absence of anything in the nature of a disciplinary complaint or concern since he resumed practice elsewhere in June 2018.
[191] Ms Goodhew invited comparison with the approach adopted in a number of other appeals on penalty, in particular Shehata v Director of Proceedings.57 I do not find the outcomes in those suggested comparators are particularly useful. They certainly suggest a benchmark for various forms of conduct, which could be ranked as comparably serious with the conduct in this case, as requiring a period of suspension as the least restrictive penalty to be imposed. The facts of those other cases are obviously different and each is distinctive.
[192] Having weighed all the competing considerations, I am not satisfied that the Tribunal erred in treating this as a case in which the period of somewhat more than 11 months out of full-time practice was sufficient to cancel out what would otherwise have warranted a period of suspension of up to approximately 12 months. I am certainly not persuaded that the Tribunal’s decision was outside the boundaries of the discretionary range available to it, to resolve the appropriate penalty in this case. I accept Mr Stevens’ submission that the appellant has been settled in new employment arrangements for some two years and a period of suspension now would be even harsher than if it was required much nearer to the misconduct.
[193]Accordingly, the cross-appeal is dismissed.
Costs
[194] The PCC sought costs for opposing the appeal. It has succeeded in doing so except on two discrete details and is entitled to costs for having to respond to a comprehensive challenge to the Tribunal’s decision.
[195] The PCC has unsuccessfully pursued a cross-appeal and that requires a reduction in what would otherwise have been the appropriate extent of costs awarded in the PCC’s favour.
57 Shehata v Director of Proceedings [2019] NZHC 615.
[196] Ms Miller was indisposed for two of the four days of the hearing. Because of that, and additionally because of the scale of the appeal relative to the number of hearing days, I am not prepared to certify for second counsel. Accordingly, I order that the respondent is entitled to 75 per cent of a costs award on a 2B basis for a single counsel for its successful opposition to the appeal.
Summary
[197] In all but two specific respects, the comprehensive grounds for this appeal have not been made out. The first exception is my finding that the Tribunal was not correct in its finding in respect of complainant H that the appellant should be sanctioned for failing to appreciate that the rest of the premises were empty and in darkness at the end of that consultation, when the evidence was that he was unaware of that situation, which arose from failings by others. A reversal of that finding cannot impact on the correctness of the remainder of the Tribunal’s findings and the penalties imposed.58
[198] The second error made out on the appeal is the unjustified terms of one aspect of a condition for the on-going conduct of practice by the appellant. That directed that the appellant was only to see female patients in certain circumstances with a chaperone, with the cost of the chaperone always to be the appellant’s liability. I accept that allocation of costs for a chaperone as between the appellant and his employer is not a matter that ought properly to be dictated by the Tribunal. I order the removal of that condition and its replacement with a condition in the following terms:59
[The appellant] is to have a female chaperone present when seeing female patients for any breast examination and that chaperone must be a registered health professional, the cost of such service being a matter between the appellant and his then employer but in no circumstances being a charge on MCNZ.
[199] The appeal against the Tribunal’s decision declining to suppress the appellant’s name is also dismissed. The appellant’s name has not been used other than in the intitulement and this judgment is not to be issued publicly for a period of four working days after its issue to the parties. In the event that the appellant provides an unqualified commitment to pursue an appeal on a question of law under s 113 of the Act, then this
58 See [100]–[101] above.
59 This is to replace the terms of the order in [431](b) of the Tribunal decision.
judgment is to issue in an anonymised form to preserve that appeal right, pending determination of any second appeal.
[200] The anonymised form in which all others participating in the proceeding have been described is to be maintained and no particulars are to be provided which might give rise to their being identified.
[201] The PCC’s cross-appeal against the Tribunal’s decision not to impose a period of suspension is also dismissed.
[202] The PCC is entitled to an order of costs in its favour at 75 per cent of the costs award on a 2B basis for a single counsel for its successful opposition to the appeal.60
Dobson J
Solicitors:
The Law Connection Limited, Waikanae for appellant Claro, Wellington for respondent
Thomas Dewar Sziranyi Letts, Lower Hutt for Health Practitioners Disciplinary Tribunal
60 See [196] above.
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