Dr G v Director of Proceedins HC Auckland CIV 2009-404-951

[2010] NZHC 199

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF APPELLANT AND COMPLAINANT

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2009-404-000951

IN THE MATTER OF     an appeal pursuant to Section 106(2)(a) of

the Health Practitioners Competence
Assurance Act 2003

BETWEEN  DR G Appellant

ANDDIRECTOR OF PROCEEDINGS Respondent

Hearing:         (On the Papers)

Appearances:  A H Waalkens QC and A L Credin for the Appellant

G C Hollister-Jones and A Mills for the Respondent

Judgment:      5 March 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy

on 5 March 2010 at 12.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     A H Waalkens QC P O Box 106215 Auckland 1143 for the Applicant

Solicitors:   Ronayne   Hollister-Jones   Lellman   P   O   Box   13063   Tauranga   Central

Tauranga 3141 for the Respondent

Copies To:   Fisher Lamberg (N K Fisher) P O Box 9074 Newmarket Auckland 1149

Health  and  Disability  Commissioner  (A  Mills  for  Director  of  Proceedings)

P O Box 11934 Wellington 6142

DR G V DIRECTOR OF PROCEEDINGS HC AK CIV-2009-404-000951  5 March 2010

[1]      Last  year  I  delivered  an  interim  judgment  in  which  I  found  that  the  facts before the Health Practitioners Disciplinary Tribunal (Tribunal) did not support the factual  conclusions  the  majority had  reached:  see  Dr  G  v  Director  of  Proceedings HC  Auckland  CIV-2009-404-000951,  12  November  2009.   I found  that  Dr  G  had established  that  the  majority  of  the  Tribunal  was  wrong  in  finding  that  a  sexual relationship between Dr G and the complainant, Ms N, arose out of a doctor/patient relationship.   Hence  there  was  no  basis  for  the  Tribunal’s  finding  of  professional misconduct and the imposition of a penalty.

[2]      There remained a live issue regarding whether or  not  Dr  G’s  conduct technically fell within the scope of the charge, because for a period of time (between April and May 2007) he provided medical services to Ms N at a time when he was in

a  sexual  relationship  with  her.   This  finding made  it  necessary for  me  to  consider whether or not the conduct, as I have found it, constitutes professional misconduct that attracts a disciplinary sanction, and if so what the penalty should be.

[3]      The parties are agreed that the determination of the outstanding issues can be dealt with on the papers.   They have each filed additional submissions and material

to  assist  me  to  form  a  view  on  those  issues.  For  a  full  understanding  of  all  the matters considered and determined in Dr G’s appeal, this judgment should be read together with the interim judgment.

Facts

[4]      Ms N commenced employment as a  health  assistant  at  Dr  G’s  practice  on

3 October 2006.  Dr G and Ms N engaged in a sexual relationship from 22 December

2006 to at least 29 May 2007.  Between April and May 2007 I found (see [58] of the interim judgment) that Dr G provided Ms N with the following medical services:

a)        On  18  April  2007,  following  a  consultation  over  vaginal  itch,  Dr  G ordered  a  mid-stream  urine  test;  he  signed  the  laboratory  test  form, and  later,  on  3  May  2007,  he  reviewed  the  test  results,  which  were returned as normal; and

b)On 9 May 2007, he took a cervical smear test, which he reviewed as normal on 12 May 2007 and recorded this in Ms N’s clinical notes.

Argument

[5]      Dr G contends that there is no absolute prohibition on a medical practitioner providing medical services to persons with whom he/she is in a close relationship.

He has referred me to the Medical Council of New Zealand’s Guideline (June 2007) Statement  on  providing  care  to  yourself  and  those  close  to  you.                 This  guideline contains the warning that it is:

… generally unwise for medical practitioners to treat people with whom they have   a   personal   relationship   rather   than   a   professional   relationship. Providing  care  to  yourself  or  those  close  to  you  is  neither  prudent  nor practical due to the lack of objectivity and discontinuity of care.

[6]      The guideline goes on to acknowledge that there are situations where treatment of persons close to a medical practitioner may occur. But even then, it should only happen when overall management of patient care is monitored by an independent practitioner. The guideline notes that an objective assessment of the patient and the patient’s medical condition is necessary for good practice and care, and that a doctor may be unable to provide an objective assessment on a patient who is also  someone  close  to  him  or  her. The  guideline  recognises  that  a  lack  of objectivity can  be  a  problem  when  providing  care  to  “family members,  those  you work  with  and  close  friends”.   It  goes  on  to  say that  “those  with  whom  you  have close emotional ties should have a general practitioner who can provide appropriate care  after  an  objective  medical  assessment”. It  then  identifies  specific  occasions when a medical practitioner’s provision of care to someone who is close to him or her is inappropriate.  They are:

i)        prescribing or administering drugs of dependence;

ii)       prescribing psychotropic medication;

iii)      undertaking psychotherapy;

iv)      issuing certificates; and

v)performing surgery (unless an appropriate referral process has been followed).

Dr  G  makes  the  point  that  none  of  the  medical  services  he  provided  to  Ms  N  fall within any of those five specific situations.

[7]      The guideline  contains  a  general  comment  that  it  is  inappropriate  for  a medical practitioner to provide care to those close to him/her in the majority of other clinical  situations. Certain  exceptions  to  this  admonition  are  recognised  in  the guideline. These   are   prescribing   for   a   continuing   condition   which   is   being monitored by another medical practitioner, emergency situations, and if the doctor is employed in a small community where there are people close to him or her who are patients because of access issues.

[8]      The guideline advises medical practitioners that when they do provide care to someone close, they should take extra care to ensure that:

i)        there is an adequate assessment of the patient’s condition;

ii)       the patient is referred to another doctor where indicated;

iii)details of the consultation are recorded in clear, accurate and contemporaneous patient records that   report   the   relevant clinical findings, the decisions made, the information given to the patient, and any drugs or treatment as prescribed; and

iv)      care should be monitored by another doctor.

[9]      Dr G  also contends that  the relevant  case law  supports the proposition that provision of medical services to persons with whom the doctor has a close personal relationship  is  not  prohibited. In support of  this  proposition,  he  relies  on  Dr  E  v Director of Proceedings (2008) 18 PRNZ 1003, particularly at [28] where the Court referred to the Tribunal’s own words in the decision under appeal:

As  a  general  proposition,  the  Tribunal  observes  that  not  all  breaches  of  a MCNZ   statement   will   necessarily   constitute   professional   misconduct; obviously a facts specific analysis is required and an assessment made of the seriousness of the departure.   But such guidelines are a helpful indicator of proper practice and ethical standards.

[10]     The Court in Dr E also noted (in [28]) the Tribunal’s recognition that treatment of minor or self-limiting conditions would not constitute a breach of the guideline, least of all found a disciplinary finding. In Dr E, the consultation and medical treatment provided by Dr E was significant. It involved Dr E, during the course of a personal and  sexual  relationship  with  his  patient,  prescribing  her  with significant quantities of anti-depressants.  One of the allegations against him was that being in a de facto relationship, he diagnosed his partner (patient) with depression. He was also charged with a serious failure to keep any records of the consultations and treatment (see [33]).

[11]     Dr G draws a contrast between the nature of the medical services he provided and those provided by the medical practitioner in Dr E.  Dr G argues that the nature

of the medical services he provided to Ms N cannot support a finding of professional misconduct.

[12]     The  Director  of  Proceedings  (Director)  argues  that  the  limited  medical services Dr G provided to Ms N are capable of supporting a finding of professional misconduct.   In  support  of  this  argument,  the  Director  draws  on  a  number  of background   matters. First,   the   contrast   in   the   personal   and   professional circumstances of Ms N and Dr G.  In this regard:

a)        Ms N was a former patient of Dr G (she had seen him once before in

2004 for an immigration health check) who remained on his books as

a patient;

b)        She was an immigrant (she had been in New Zealand since 2000);

c)        She was employed by Dr G as a part time health assistant.   She was under  stress  as  she  was  undertaking  training  and  she  wanted  more hours of work so that she could complete her training;

d)She  was  isolated  from  her  family,  and  her  husband  was  frequently away (he was employed as a sea captain), and she suspected he was having extra maritial affairs with other women; and

e)        Her isolation was further reflected in not having anyone in whom she could confide about the relationship with Dr G.

[13]     Whereas Dr G was a medical practitioner with his own practice.  He had been practising for 22 years.   He was married with two children.   He had good contacts within his community, and good support from family and friends.

[14]     The second background matter relied on by the Director is the nature of the sexual relationship between Ms N and Dr G. Since it was an extra marital affair, the relationship was secret, and their sexual relations occurred in places where they were not likely to be discovered. Ms N described herself as not wanting to engage in a sexual relationship with Dr G, but doing so because she had no choice. The Director refers  to  passages  in  Ms  N’s  evidence  before  the  Tribunal  in  which  she  described herself as feeling pressured into having sexual relations with Dr G.  This was in part because she was hopeful that he would extend her work hours.  The Director argues that in such circumstances, Ms N cannot be likened to a wife, de facto partner, friend or close associate of Dr G, as is contemplated in the guidelines on providing medical services to close associates.

[15]     The  third  matter,  which  seems  to  be  something  that  is  drawn  from  the preceeding  matters  rather  than  being  additonal  to  them,  is  an  imbalance  of  power between Ms N and Dr G.  In essence, the Director portrays Ms N as a vulnerable and weak  person  at  the  mercy  of  the  demands  and  desires  of  a  far  stronger,  more confident and better established person.  This vulnerability is said to be reinforced by Ms  N  being  a  former  patient  of  Dr  G,  and  also  because  as  his  employee  she depended on him for her financial security.

[16]     The Director referred me to a number of publications on medical ethics and conduct. The Director has  set  out  broad  principles  underlying  the  practice  of

medicine that can be used to undertake an ethical analysis of a problem in medicine. These are:

a)        No maleficence – which situations are possibly harmful to patients?;

b)Autonomy – at what point in the situation is the patient’s status as a person  with  the  power  to  decide  and  act  in  his  or  her  own  best interests threatened?;

c)        Professional  integrity  –  what  is  the  impact  of  what  is  done  on  the practice and profession of health care?; and

d)       Justice.

These are the underlying fundamental principles which the Director contends should

be the basis from which Dr G’s actions are considered.   The Director submits that even  in  today’s  society,  a  doctor  can  still  be  seen  as  invested  with  a  “Godlike authority  and  faith  in  the  doctor’s  ability  to  diagnose  correctly  and  to  prescribe effective treatment can be seen as an important component in the healing process”.

[17]     I was also referred to the Medical Council of New Zealand’s Good Medical

Practice a Guide for Doctors, which starts with the statement:

Patients are entitled to good doctors.  Good doctors make the care of patients their first concern; they are competent, keep their knowledge and skills up to date, establish and maintain good relationship with patients and colleagues, are honest and trustworthy and act with integrity.   Doctors are required to make the care of patients their first concern.

[18]     The  concept  of  acting  with  integrity  is  further  developed  at  paragraph  88 where integrity, which is likened to being honest and trustworthy, is said to be at the heart of medical professionalism.

[19]     I was also referred to the New Zealand Medical Association’s Code of Ethics, which in its preliminary statement notes that the medical professional has a social contract with the community and that in return for the trust patients and community place in doctors, ethical codes are produced to  guide  the  profession  and  protect

patients. Medical ethics are said to be the moral basis for practice, the four moral principles being autonomy, beneficence, non-maleficence and justice. The recommendations for professional practice include:

Doctors should ensure that all conduct in the practice of their profession is above reproach.   Exploitation of any patient, whether it is physical, sexual, emotional  or  financial   is  unacceptable   and  the  trust   embodied   in  the doctor/patient relationship must be respected.

[20]     It was brought to my  attention  that  the  high  moral  and  ethical  standards expected of doctors are not unique to New Zealand. Similar statements are reflected

in publications on medical ethics in the United Kingdom and in North America.

[21]     The Director then referred to the zero tolerance policy the Medical Council of New  Zealand has on sexual relations between a doctor and a current patient.   The Director contends that this policy is a relevant consideration when I come to consider the facts of this case.   Whilst acknowledging that  I have already found  that Ms N was  not  a  current  patient  of  Dr  G’s  at  the  time  of  their  sexual  relationship,  the Director  argues  she  was  neither  a  family  member,  nor  a  close  friend,  and  so  the policy reasons for the Medical Council of New Zealand’s zero tolerance of a sexual relationship in the doctor/patient relationship are applicable to the present case.  The policy reasons for the Council’s zero tolerance policy are said to be based upon the following propositions:

a)        Boundaries    in    the    doctor/patient    relationship    are    particularly important  because  there  is  a  physical  and  intimate  aspect  to  the relationship that does not exist with most other professionals;

b)Trust is the basis of the doctor/patient relationship.  This trust lets the patients  discuss  private  and  confidential  information  by  creating  an environment   of   mutual   respect   and   trust   in   which   patients   feel confident and safe;

c)        Harm to the patient.   Breaching sexual boundaries have proved to be harmful to patients; and

d)Power imbalance.   The doctor/patient relationship is not equal.   The major reasons given are:

i)The patient shares personal information with the doctor rarely shared with others;

ii)The  doctor  does  not  reciprocate  in  the  sharing,  making  it  a one-sided relationship;

iii)      Close physical contact occurs in a consultation, solely because

of the role of the doctor;

iv)      The doctor determines the level of physical contact;

v)The  patient  does  not  have  an  equal  power  status  in  the relationship; and

vi)      Impairment of clinical judgment.

[22]     The Director  contends that all these factors have potential relevance in this case.  The taking of a cervical smear is said to have been a physically intimate aspect

of the medical relationship between Dr G and Ms N.   It is said that Dr G’s earlier involvement with Ms N (when he did the immigration health check in 2004) meant that he was privy to information gained during the immigration check about her past medical history, medical conditions and other background matters.   This sharing of private personal information was not reciprocated to the same extent by Dr G.   The imbalance of power accentuated by the other contrasting factors already identified in her personal circumstances is said to  suggest that Ms N was in a  more  vulnerable position than a family member would be, and that these factors had the potential to create a relationship of dependency on Dr G.

[23]     The Director contends that the nature of the relationship meant that Ms N was vulnerable, and there was a clear potential for emotional harm. He argues that because  the relationship was “clandestine and  secretive”, it was neither a public relationship, nor a long term secure relationship  such  as  a  marriage.   Thus,  Ms  N

could not confide in people close to her about what was happening, and her partner was not aware of the relationship. The fact that sexual intercourse had occurred in the surgery on at least two occasions is said to be an aggravating factor. In addition,

as  an  employee,  Ms  N  was  additionally  vulnerable  as  she  relied  on  Dr  G  for  her financial security, and in that regard the Director refers to evidence she gave to the Tribunal that she took the job with Dr G because she was stressed looking for work.

[24]     The Director argues that the nature of the medical services Dr G provided are important.                He  accepts  that  at  [61]  of  the  interim  judgment,  I  found  that  the intervention of a third party to carry out the diagnosis (both in relation to the mid- stream urine test and cervical smear test) meant there was no risk of Dr G losing his objectivity.     However,  the  Director  submits  that  although  it  was  the  role  of laboratory staff to perform those tests and provide the results back to Dr G, there was still a role for Dr G in respect of subsequent treatment, if required.  For this reason, the  Director  contends  the  potential  for  impaired  judgment  regarding  diagnosis  or treatment due to a lack of independence and objectivity remained.  This potential for harm is said to be relevant to an assessment of whether Dr G’s conduct breached his ethical duties.   The Director also contends that both the mid-stream urine test and a cervical smear may have involved questioning Ms N about her sexual practices and activity. Being involved  in an intimate, yet clandestine sexual relationship with Dr G could clearly affect Ms N’s sense of discomfort and embarrassment in answering these questions, and her ability to respond honestly. It could also affect the objectivity of Dr G.

[25]     The  Director  has  also  referred  to  the  finding  I  made  at  [61]  of  the  interim judgment  that  because  Ms  N  was  a  health  assistant  and  had  been  in  a  consensual sexual relationship with Dr G for some three months, having a cervical smear was not invasive.   The Director has referred me to the Medical Board of Queensland’s policy on  medical  practitioners  treating family,  friends,  colleagues  and  self,  which notes,  at  paragraph  3.3(a),  “the  close  relationship  can  make  eliciting  a  complete personal  history  or  performing  a  full  physical  examination  uncomfortable  for  the practitioner or patient or both”.   Similar statements are said to be made in various other Australian States’ publications on medical conduct.

[26]     The Director submits that high standards of conduct in the medical profession are  timeless.           He  relies  on  the  Medical  Council  of  New  Zealand’s  Statement  on Sexual Boundaries, which expressly states:

The  Council  rejects  the  view  that  changing  social  standards  require  a  less stringent   approach.                 Only   the   highest   standard   is   acceptable   and   the professional  doctor/patient  relationship  must  be  one  of  absolute  trust  and confidence.

[27]     In response to Dr G’s submissions relating to the Medical Council Guidelines Statement on providing care to yourself and those close to you, the Director submits that while the guideline may be of some assistance, the facts of this case do not fit squarely within the intended framework of the statement.  The statement is said to refer to family members, those who you work with and close friends. Ms N is said

to fall outside this category. The Director submits that the focus in the guidelines is more directly on traditional family relationships, such as spouse, siblings, children, close friends (but not those with whom one is sexually involved), and work colleagues. He submits, therefore, that the guideline provides only limited guidance

in  a  situation  like  the  present.   He  also  refers  to  the  guideline’s  reference  to practitioners  who  do  provide  medical  services  to  those  who  are  close  to  them,  to ensure that there is monitoring by an independent medical practitioner.

[28]     The  Director  referred  to  evidence  that  was  before  the  Tribunal  that  Dr  G issued a medical certificate for Ms N on 24 May 2007.   This is important because one  of  the  specified  occasions  when  the  guideline  says  practitioners  should  not provide services to a person closely associated with them is the provision of medical certificates.   However,  I  made  no  finding  on  that  matter  in  the  interim  judgment, because at [58]  I found that the Tribunal had not listed the provision of a medical certificate  for  Ms  N  as  one  of  the  services  Dr  G  was  found  to  have  provided.   I concluded that I would not consider that matter any further.

[29]     The evidence regarding the medical certificate is at [38.1] of the Tribunal’s decision. The Tribunal referred to Dr G’s evidence that he had provided a medical certificate for Ms N on 23 May 2003 after she had been ill with flu. However, the reference is made in passing. This event did not form part of the Tribunal’s decision.

Dr G was not facing an allegation  that  the   provision  of  the  certificate  was

professional misconduct, and contrary to the guideline on providing medical services

to close associates.  Consequently, he was not put on notice of the risk of an adverse inference being drawn about this aspect of his conduct.   Had he been put on notice

he may have been able to provide an explanation that placed his conduct in a better light. Since he has not had that opportunity, I do not consider that I can take this aspect of his conduct into account in reaching a view on whether the charges  he faced have been established.  The Tribunal did not place any weight on the provision

of the certificate, nor do I think I should.  I do not propose to consider this issue any further.

[30]     The Director contends that the Court  should  look  at  the  entire  context  of

Dr G’s  conduct,  consider  all  the  surrounding  circumstances,  and  the  fundamental ethical  principles  underlying  the  medical  profession.   The  Director  submits  that  a blanket application of the guidelines on Providing care to yourself and those close to you  is  an  inappropriate  tool,  and  consideration  must  be  given  to  the  fundamental principles used to analyse an ethical medical dilemma.  The importance of doing no harm,  putting  the  interests  of  the  patient  first,  being  trustworthy  and  honest,  and acting  with  professional  integrity,  are  said  to  be  the  paramount  considerations  for this   Court   to   consider. When   Dr   G’s   conduct   is   assessed   against   these considerations,  he  has  failed  to  meet  these  tests.   He  is  someone  who  has  put  his interests and needs ahead of Ms N, and he has showed a lack of integrity.

[31]     The Director submits that when assessing  the  applicable  ethical  standard,  I should take into account the New Zealand Medical Association’s Code of Ethics, the New Zealand Medical Council’s Statement on Sexual Boundaries (the zero tolerance policy), and the Medical Council of New Zealand’s 2001 statement on the provision

of care to family members (Self and  Family Treatment ) rather than  the  Council’s

2007 statement on Providing Care to Yourself and Those Close to You.  The Director submits  that  I  should  also  consider  the  reasons  underlying  these  policies,  and whether Dr G was acting in the best interests of his patient.   The Director submits that Dr G did not act in accordance with accepted practice or professional ethics.  He was wrong to provide Ms N with medical services while involved in a clandestine sexual  relationship  with  her.     There  is  nothing  about  the  circumstances  in  which those services were provided which could bring them within any of the recognised

exceptions.    It  is  said  overall  that  his  conduct  has  fallen  well  below  accepted professional ethical standards.

[32]     When  it  comes  to  the  legal  test  for  finding  professional  misconduct,  both parties agree that this is a two step process.  The first step is whether the particulars amount to professional misconduct, and the second step is whether the threshold for disciplinary sanctions has been met.

[33]     Section  100  of  the  Health  Practitioners  Confidence  Assurance  Act  2003 identifies matters which may constitute professional misconduct, these being conduct amounting  to  malpractice,  or  conduct  amounting  to  negligence,  or  conduct  which brings  or  is  likely  to  bring  discredit  on  the  medical  profession. The  following definitions of malpractice were drawn to my attention:

a)        The  Collins  English  Dictionary  (2nd  ed)  defines  it  as  “The  immoral, illegal  or  unethical  conduct  or  neglect  of  professional  duty. Any instance of improper professional conduct”;

b)The New Shorter Oxford   English   Dictionary   defines   it   as   “(1) Improper treatment or culpable neglect of a patient by a physician or

of a  client by a lawyer;  (2) a criminal or illegal  action: wrongdoing misconduct”; and

c)        A reference from Chand 106/Nur 06/49P at [14] where the Tribunal, with reference to paragraph 23.65 Medical Law in New Zealand 2006, defined “malpractice”:

Malpractice,  although   often   equated   with  negligence,  is perhaps  better  considered  a  broader  concept,  capable  of encompassing  neglect,  but  also  extending  to  trespassery conduct  in  the  process  of  caring  for  patients  in  relation  to consent,   breaches   of   patient   confidence   and   fiduciary obligations   and   other   forms   of   conduct   reaching   the necessary gravity, such as assaulting a patient, swearing at or threatening   a   patient,   a   deliberate   failure   to   obey   an instruction or sexual misconduct.

[34]     Discrediting a health profession was considered in Collie v Nursing Council

of New Zealand [2001] NZAR 74 at 84 to involve bringing:

… harm to the repute or reputation of the profession.  The standard must be

an  objective  standard  for  the  question  to  be  asked  by  the  Council  being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the reputation and good standing of the nursing profession was lowered by the behaviour of the nurse concerned.

[35]     The Director submits that I should form the view that Dr G’s conduct would

be considered unacceptable, inappropriate, or likely to bring discredit to the medical profession by members of the public.   The Director also argues that Dr G’s actions can   be   described   as   malpractice   and,   therefore,   they   amount   to   professional misconduct.

[36]     The parties are in disagreement  over  the  threshold  for  the  imposition  of  a disciplinary sanction.  Dr G argues that it is a high threshold.  The Director relies on

a  recent  decision  of  this Court  in Martin  v  Director  of  Proceedings  HC  Auckland CIV 2006-404-005706, 1 July 2008 where Courtney J rejected an argument that the Health  Practitioner’s  Competence Assurance Act 2003 imposed  a  high  threshold, and confirmed that the test was whether the departure from acceptable standards was “significant enough to  warrant  sanction”. The  Director  invites me  to adopt  the approach taken in Martin, rather than decisions under previous statutory provisions, all of which involved a three-tier, rather than the present single-tier regime.

Analysis

[37]     This  is  a  decision  to  determine  an  outstanding  issue  that  could  not  be addressed in the interim judgment.   At the time of the hearing, the case each party addressed was fixed by the Tribunal’s finding that the sexual relationship between Dr   G   and   Ms   N   had   arisen   in   the   course   of   a   doctor/patient   relationship. Consequently,  the  findings  I made  in  the  interim  judgment  cannot  be  re-visited  in this judgment.

[38]     The view I reached in the interim judgment was based on my assessment of the findings the Tribunal had made.   The Tribunal was faced with a case in which

Dr G had disputed there had ever been a sexual relationship between him and Ms N.

In order to reach its decision, the Tribunal was required to decide whose evidence it preferred.                  Indeed,  the  Tribunal  recorded  at  [16]  of  its  decision  that  “credibility assessements are central in this case”.

[39]     Whilst  the  Tribunal  decided  that  Ms  N  was  the  more  reliable  and  credible witness  when  it  came  to  the  occurrence  or  otherwise  of  a  sexual  relationship,  the Tribunal also found that there were inconsistencies and weaknesses in some aspects of Ms N’s evidence.  At [52.2] of its decision, the Tribunal described Ms N as being “inconsistent on some matters, and ... has exaggerated others”.   Whilst the Tribunal preferred Ms N’s evidence to that of Dr G in a number of key respects, the Tribunal also  recognised  there  were  problems  with  some  of  Ms  N’s  evidence.          Since  the Tribunal had the benefit of seeing and hearing the witnesses, I prefer to rely on the findings  of  the  Tribunal  when  it  comes  to  the  reliability  and  credibility  of  those witnesses. In  adopting  this  approach,  I  am  not  acting  inconsistently  with  the principles on appellate decision-making that were expressed in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).  There is nothing in that judgment which in my view encourages appellate courts to embark on their own analysis of the crebility and reliability of disputed evidence.   Likewise, where the Tribunal which has heard the evidence has left disputed evidence unresolved, I consider that I am in no position to assess whose evidence is the more reliable or credible.   I can reach a view  on  undisputed  evidence  or  on  the  inferences  to  be  drawn  from  any  of  the available evidence, but that in my view is as far as I can go.

[40]     The  findings  of  the  Tribunal  on  disputed  evidence  that  is  now  relevant  to assessing the background matters relied upon by the Director are as follows:

a)        Dr G was aware as a result of the immigration consultation in 2000, the  meeting  at  a  fast  food  outlet  in  2004,  and  some  phone  calls between  himself  and  Ms  N  that  Ms  N  was  in  training  as  a  health assistant and was interested in working for him in this role;

b)        In 2006, he required a  health  assistant,  and  there  was  discussion  to

this effect with the primary health organisation;

c)        Dr G adopted a commercial  approach  when  he  employed  Ms  N.

There were several phone calls before September/October 2006 when an offer of employment was made; and

d)Significantly, the Tribunal found that it was left in doubt as to whether Dr  G  had  sought  Ms  N  out  as  an  employee  because  he  wanted  to establish a sexually intimate relationship with her.

[41]     When  it  came  to  assessing  the  dispute  over  the  occurrence  of  a  sexual relationship, the Tribunal found there was a sexual relationship between Dr G and Ms N from 22 December 2006 to at least 29 May 2007.   Having made this finding, the  Tribunal  then  went  on  to  consider  whether  or  not  Ms  N  was  a  patient,  and whether  the  sexual  relationship  had  arisen  from  the  doctor/patient  relationship. Since  an  affirmative  finding  on  this  issue  supported  a  finding  of  professional misconduct,  the  Tribunal  did  not  trouble  itself  with  making  specific  findings  on evidence which described aspects of the relationship between Dr G and Ms N.  This has  meant  that  the  Tribunal  made  no  findings  on  evidence  from  Ms  N,  which  the Director  now  relies  upon  to  establish  professional  misconduct. For  example,  to explain the distress she felt about the relationship, Ms N gave evidence that she felt she was at times treated as a “sex object”, and that she was being taken advantage of.

I am in no position to form a view on the reliability of this evidence.   Whilst it is consistent  with  the  findings  of  the  Tribunal  to  conclude  that  the  sexual  relations between Dr G and Ms N would have been undertaken in circumstances not likely to lead to their discovery, I am in no position to form any view on the reliability of the descriptions Ms N gave about the circumstances of the relationship, and the impact of the relationship on her.

[42]     The Tribunal referred to Ms N becoming angry and suspicious that Dr G was engaging in sexual relationships with others. Significantly, the Tribunal did not accept  Ms  N’s  evidence  that  he  was  engaging  in  sexual  relationships  with  other

employees.   That is an aspect of Ms N’s evidence which was found to be wrong in fact.  The feelings of Ms N which I have referred to, the Tribunal put down to being consistent with sexual jealously (see [90] of the Tribunal’s decision).

[43]     The majority opinion of the Tribunal included the conclusion that Ms N was

a vulnerable person.  She had described to the Tribunal stresses such as her need to accept employment at the time she was offered the health assistant position, feeling under pressure whilst undertaking vaccination training, and believing her partner was being unfaithful to her.  At [127] of their decision, the majority of the Tribunal also concluded that Ms N was vulnerable because she regarded Dr G throughout as her doctor.  However, this finding is made in the overall context of the majority finding that  the  sexual  relationship  had  arisen  from  the  doctor/patient  relationship. The Tribunal also concluded that there was a significant power imbalance which arose in part because of the doctor/patient relationship, and that this factor contributed to the establishing of the sexual relationship.  This finding is contrary to the view I took in the interim judgment.

[44]     The  difficulty  with  the  Tribunal’s  findings  on  Ms  N’s  vulnerability  is  that they  are  affected  by  the  majority’s  view  that  there  was  a  power  imbalance  in  the doctor/patient relationship, and that the sexual relationship developed in the context of  a  doctor/patient  relationship.      It  is  difficult  to  tease  out  from  the  majority’s findings   the   conclusions   it   reached   on   Ms N’s vulnerability as it   existed independently of a doctor/patient relationship.   I can accept that an employee who engages  in  a  sexual  relationship with an  employer  will  be  vulnerable  as  there  is usually a power imbalance in the relationship of employer and employee. I do not consider that a former patient of a doctor is necessarily vulnerable as the existence of any  power  imbalance  will  turn  on  the  facts  relevant  to  the  individuals  concerned rather  than  emanate  from  the  relationship  of  doctor  and  former  patient. Nor do I think that Ms N being an immigrant to New Zealand made her  particularly vulnerable. She arrived in New Zealand in 2000. By the time the relationship with Dr G occurred, Ms N had been in New Zealand for approximately seven years, and was entitled to work and reside here.  Regarding the Director’s submission that Ms N was isolated, lacked support and could not discuss her relationship with Dr G with

anyone else, the Tribunal made no findings in this regard.  I do not find the evidence sufficient to enable me to draw that inference.

[45]     I do not accept the Director’s  submission  that  there  was  an  element  of pressure on Ms N to engage in sexual relations with Dr G. That submission comes close to suggesting that Ms N had agreed under duress to such a relationship, which is  akin  to  saying  there  was  no  proper  consent.  That  is  a  serious  allegation  which could only be properly made now if it had been put to Dr G in cross-examination, and was the subject of an affirmative finding by the Tribunal.  Moreover, it seems at odds  with  the  Tribunal’s  recognition  that  there  was  an  element  of  sexual  jealousy behind some of Ms N’s evidence (see [90] and [107] of the Tribunal’s decision).

[46]     I  am  prepared  to  accept  the  Director’s  submissions  that  Ms  N  was  a vulnerable  person  in  that  she  was  employed  by  Dr  G,  was  studying  as  well  as engaged  in  working  at  a  busy medical  practice,  and  there  may well  have  been  an emotional fragility due to her suspicions about her husband’s infidelity.   These are matters  which  I  consider  may  have  caused  her  to  engage  more  readily  in  the relationship  with  Dr  G.   However,  these  vulnerabilities  seem  to  me  to  be  of  little weight  given  the  conclusion  I  reached  that  the  sexual  relationship  developed  at  a time when Ms N could only be described as a former patient of Dr G, and prior to the provision of the medical services in April and May 2007.

[47]     I propose to assess Dr G’s conduct against a factual matrix in which medical services were provided to someone who:

a)        had been living in New Zealand for seven years and whose right to do

so was secure;

b)was  a  former  patient  (one  doctor/patient  encounter  approximately three years prior to the sexual relationship);

c)        had  been  employed  by  Dr  G  for  some  seven  months  as  a  health assistant;

d)for approximately four months prior to the provision of the medical services had been engaged in a sexual relationship with Dr G; and

e)        was  a  married  woman  who  was  to  some  degree  emotionally  fragile and  vulnerable  due  to  her  belief  about  her  husband’s  infidelity,  was juggling work and study, and was engaging in an extra marital affair with her married employer.

[48]     I  am  also  mindful  that  at  [61]  of  the  interim  judgment  I  found  that  the medical services Dr G provided were minor and not of a type that would generate patient dependency and, therefore, vulnerability:

In this case, the original doctor/patient relationship  is  remote  from  the commencement of the sexual relationship. The medical services that were provided after the sexual relationship had commenced were minor and not of

a type where there would be any patient dependency on the doctor, with the consequential  patient  vulnerability  that  can  entail.    The  mid-stream  urine tests and cervical smear tests, which Dr G carried out, are standard routine medical tests.  Their results would have been diagnosed at the laboratory to which they were sent for reading.  The intervention of a third party to carry out the diagnosis meant there was no risk of the doctor losing his objectivity owing to the sexual relationship with Ms N.   Nor do I consider the cervical smear test to be invasive in the way the Director suggested.  Ms N is a health assistant and someone who at the time of the test being taken had been in a consensual sexually intimate relationship with Dr G for some three months.

It is difficult to see how someone in those circumstances could reasonably find  the  steps  the  doctor  would  need  to  take  to  obtain  a  cervical  smear invasive.

[49]     I  have  carefully  considered  the  material  the  Director  referred  me  to  on medical professional ethics and conduct.  Regarding the broad principles underlying the practice of medicine, I do not consider that there has been any maleficence. This is because I do not see how what has occurred can be said to have been harmful to Ms N. Nothing that happened has interfered with her autonomy. Nor has there been any interference with justice or professional integrity.

[50]     I do not accept the Director’s submission that  the  provision  of  the  medical services carried with it the potential risk of Dr G losing his objectivity and failing to perform well in his role as a doctor. Had the medical tests he approved indicated health conditions which required treatment, there may have been problems of the type the Director has identified if Dr G had then proceeded to treat Ms N. But as

matters  turned  out,  both  tests  did  not  reveal  any  health  conditions. It  cannot  be assumed   that   had   the   results   been   otherwise,   Dr   G   would   have   taken on responsibility for Ms N’s care. As I have already said in the interim judgment, the tests were read by other medically  qualified  persons  independent  of  Dr  G. He simply ordered the tests.  In the case of the cervical smear test, he obtained the smear and later advised Ms N the results were normal.   The intervention of the pathology personnel who actually read the tests seems to me to bring the circumstances close to the recommendation in the guidelines on Providing care to yourself and those close to you of having an independent practitioner monitor the services.

[51]     I  do  not  accept  the  Director’s  submission  that  the  guidelines  on  Providing care  to  yourself  and  those  close  to  you  is  not  relevant  to  the  present  case.   Those guidelines  extend  beyond  family  members  and  include  work  associates. On  my reading  of  the  guidelines,  there  would  have  been  no  harm  in  Dr  G  providing  the medical  services  which  he  did  to  an  employee  of  his  practice. It  is  the  sexual relationship which is the added dimension that brings his conduct into question.  The guidelines are relevant to circumstances where the close association is not a publicly acknowledged one.   Any assessment of the association and of the medical services provided   must   turn on the   individual   nature   and   circumstances   of   both   the association and the services.  There may be occasions where the secretive nature of a close relationship could well have an impact on the appropriateness of the medical services provided to a close associate of the doctor. But each situation must turn on

its  own  circumstances.  I  do  not  see  any  reason  why  the  secretive  nature  of  the relationship between Dr G and Ms N should have any impact on the relevance of the application  of  the  guidelines  on  providing  services  to  close  associates,  given  the nature of the services provided.

[52]     I also do not accept that the Medical Council of New Zealand’s Statements on Sexual Boundaries (the zero tolerance policy) is applicable to the present case. That policy is clearly directed at sexual relationships which arise from the doctor/patient relationship. The propositions on which that policy is based are not automatically applicable to the present case. I do not see how any boundaries in the doctor/patient relationship could have been breached here. No issue of trust arises, as Ms N was not dependent on Dr G for a diagnosis. No issue of harm to Ms N arises. The type

of  power  imbalance  recognised  in  the  zero  tolerance  policy  is  not  present  here. Issues of close physical contact are not relevant here.  In my view, they matter when there has been close physical contact due to the doctor/patient role, which then gives rise to a sexual relationship.  This seems to me to be capable of being viewed quite differently  from  the  circumstance  where  three  months  after  a  full  intense  sexual relationship a doctor participates in the obtaining of two tests that are the primary responsibility of the pathology service reading the tests.   In the present case, given the type of services provided, there was no risk of Dr G’s clinical judgment being impaired.   Whilst  I accept there may have been  some power imbalance  due to the employer/employee  relationship,  this  is  not  a  situation  where  the  perceived  power imbalance emanating from a doctor/patient relationship preceded and may, therefore, have contributed to the advent of a sexual relationship.

[53]     The Director invited me to stand back and look at the matter overall.  In this regard, the Director has submitted that when Dr G’s conduct is assessed against the broader considerations of fundamental principles (the importance of doing no harm, being  trustworthy  and  honest,  and  acting  with  professional  integrity),  his  conduct falls so far short of what is required that it amounts to professional misconduct.  I do not  see  matters  this  way. Whilst  there  are  those  in  the  community  who  would consider a married man engaging in sexual relations with a married woman who was not  his  wife  was  shabby,  if  not  immoral  conduct,  it  is  clear  to  me  that  the professional  standards  and  ethical  standards  to  be  applied  do  not  go  so  far  as  to regard   extra   marital   affairs   per   se   by   doctors   as   amounting   to   professional misconduct.   Nor do those requirements identify a doctor who engages in an extra marital affair with a married employee as demonstrating professional misconduct.  It is  those  aspects  of  Dr  G’s  conduct  that  are  likely  to  attract  the  greater  moral condemnation.

[54]     The medical services Dr G provided to Ms N are not sufficient, when added

to the mix of his other conduct, to elevate it to professional misconduct.   There is nothing   about   the   conduct   which   impacted   on   his   ability   to   discharge   his professional duties as a doctor.  Dr G’s conduct cannot be seen as malpractice.  Nor can it be seen as bringing discredit to the medical profession.  Arguably, his conduct has brought discredit to himself as a man.  But I do not see why any members of the

community would  consider  such  conduct,  if  they learnt  of  it,  to  be  harmful  to  the reputation of the medical profession.

[55]         Ordinarily,   the   findings   I   have   made   on   the   absence   of   professional misconduct would bring this matter to an end.   However, in case my assessment on the absence of professional misconduct is wrong, I consider it appropriate to go the next step and to determine whether the conduct of Dr G could be seen as sufficiently significant to warrant sanction, should it amount to professional misconduct.   In my view, if his conduct were to be seen as professional misconduct, it would rank at the very bottom end of professional misconduct.  Applying the test in Martin v Director of Proceedings, I do not consider that the minimal medical services Dr G provided constitute  conduct  that  is  significant  enough  to  warrant  a  disciplinary sanction.   It follows  that  the  appeal  on  the  Tribunal’s  finding  of  professional  misconduct  is allowed.

[56]     Since  I  have  allowed  Dr  G’s  appeal,  it  is  unnecessary  to  deal  with  the question of penalty.

[57]     Dr  G  has  enjoyed  interim  name  suppression  and  seeks  permanent  name suppression.  The Director seeks publication of Dr G’s name, but that submission is made in the context of the Director regarding the charge of professional misconduct as having been established.  Nothing has been said about name supression following a successful appeal against the Tribunal’s decision.  Given the outcome of this case and Dr G’s request for permanent name suppression, I would be of a mind to grant the request.  However, for the moment I will leave the temporary suppression orders in place and allow the Director leave to file a memorandum setting out his position on  permanent  name  suppression  following  the  success  of  the  appeal. Any  such memorandum should be filed within 10 days of the delivery of this judgment.  Dr G has 10 days from receipt of the Director’s memorandum to file a response.   If the Director takes no further steps, the temporary suppression orders now in place are to become permament following the expiry of the timetable set out herein.

Result

[58]     The appeal is successful.  The parties have leave to file memoranda on costs. The temporary name suppression orders are to remain in place until they are replaced with permanent orders in terms of the directions in [57] or further order of the Court, whichever is the sooner.

Duffy J