Ministry of Health v Pitt

[2021] NZHC 2357

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2021-485-30

[2021] NZHC 2357

BETWEEN

MINISTRY OF HEALTH

Appellant

AND

GEOFFREY RONALD PITT

Respondent

Hearing:	25 August 2021 (via VMR); further submissions received 27 August 2021
Counsel:	H M L Farquhar for Appellant A B Darroch for Respondent
Judgment:	9 September 2021

JUDGMENT OF MALLON J

Introduction

[1]    Geoffrey Pitt faced three charges under the Health Practitioners Competence Assurance Act 2003 (the Act). One charge alleged he claimed or suggested he practises as an osteopath when he did not hold a practising certificate (an offence under s 7(2) of the Act). Two charges alleged he performed a restricted treatment when he was not a health practitioner permitted to perform that activity (an offence under s 9(4) of the Act). He was acquitted of all three charges in a District Court Judge-alone trial before Judge Sygrove.1

[2]    The Ministry of Health appeals that decision in relation to the charge of claiming that he practised as an osteopath. The appeal required leave which I have earlier granted.2 Leave was granted on the question of whether the Judge erred by

1      Ministry of Health v Pitt [2021] NZDC 8189.

2      Criminal Procedure Act 2011, s 296; Ministry of Health v Pitt [2021] NZHC 1789.

MINISTRY OF HEALTH v PITT [2021] NZHC 2357 [9 September 2021]

approaching the issue of whether Mr Pitt could only be guilty of the charge if he held himself out as a registered osteopath. It is accepted by Mr Pitt that the offence does not require that he held himself out to be a registered osteopath. He contends that the Judge correctly set out the requirements of the offence and reached a conclusion open to him on the evidence.

The Act

[3]    The principal purpose of the Act is to protect the health and safety of members of the public by providing mechanisms to ensure that health practitioners are competent and fit to practise their professions.3 Osteopaths are health practitioners regulated by the Act.4

[4]Section 7 of the Act provides:

7        Unqualified person must not claim to be health practitioner

(1)A person may only use names, words, titles, initials, abbreviations, or descriptions stating or implying that the person is a health practitioner of a particular kind if the person is registered, and is qualified to be registered, as a health practitioner of that kind.

(2)No person may claim to be practising a profession as a health practitioner of a particular kind or state or do anything that is calculated to suggest that the person practises or is willing to practise a profession as a health practitioner of that kind unless the person—

(a)is a health practitioner of that kind; and

(b)holds a current practising certificate as a health practitioner of that kind.

…

(5)Every person commits an offence punishable on conviction by a fine not exceeding $10,000 who contravenes this section.

[5]    Section 9 provides for the Governor-General, by Order in Council, to declare an activity that forms part of a health service to be a restricted activity. It is an offence to contravene s 9(4) which provides:

3      Section 3(1).

4      Section 114(4).

No person may perform, or state or imply that he or she is willing to perform an activity that, by an Order in Council made under this section, is declared to be a restricted activity unless the person is a health practitioner who is permitted by his or her scope of practice to perform that activity.

[6]    High Velocity Low Amplitude (HVLA) manipulation to the necks of patients is a restricted activity. Osteopaths are permitted to perform this activity.

District Court trial

Background

[7]    Mr Pitt is 80 years old. He completed training in osteopathy in 1983. He completed training in naturopathy at around the same time. Following the commencement of the Act in 2003, he was a registered osteopath holding a practising certificate for a period. However, since 2005 he has not held a practising certificate to practise as an osteopath. He confirmed to the Osteopathic Council that year that he had no intention of practising as an osteopath or of presenting himself as an osteopath.

[8]    Mr Pitt continued to run a naturopathic clinic. In November 2018 the complainant attended an appointment at his clinic to receive treatment for lung congestion. The prosecution contended that during this appointment he made a statement that he was an osteopath as well as a naturopath and that he went on to perform a HVLA treatment on her at this and at a second appointment.

[9]The issues at trial were:

(a)what Mr Pitt had said to the complainant and whether that breached    s 7(2) of the Act; and

(b)what treatments Mr Pitt had performed and whether they were a restricted activity under s 9(4) of the Act.

The evidence

[10]   The complainant gave the following evidence. She had nagging chest congestion, a cough and headaches following surgery for an infection in her lung. She

was interested in trying a natural health treatment and made an appointment with   Mr Pitt on a recommendation from a work colleague. She understood from her work colleague and from looking on his webpage that he was a naturopath.

[11]   The appointment was for 7 November 2018. The complainant told Mr Pitt she was there because of her chest congestion. Mr Pitt spent some time obtaining the complainant’s medical history (about half of the appointment was taken up with this). Mr Pitt told her that he thought her neck was not properly aligned and this was causing a lack of flow and in turn the congestion. He said her neck needed to be freed up to help with the flow. The complainant was quite surprised by this because she saw an osteopath on a regular basis (for preventative health measures) and was also a yoga and Pilates instructor and so had body awareness.

[12]The complainant said that Mr Pitt went on to say:

You’re lucky that I’m [an] osteopath as well as a naturopath and I can help you with your neck if you have time, I can help you with that today.

[13]   She remembered this quite clearly – Mr Pitt used the words “osteopath” and “naturopath” and said he could help her “today” if she had time. She was not surprised to hear that he was an osteopath as well as a naturopath because the two sometimes come together in holistic health.

[14]   He said he was going to do a neck adjustment (she did not recall the exact words). He explained she had to lie down, he would support her head while moving it around to adjust her neck. She did not have any concerns because she had had this treatment from her osteopath before. If she had realised Mr Pitt was not a registered osteopath she would have been quite nervous about him doing this treatment.

[15]   The treatment started out the way she expected but some of the rotations were very sharp. It was a more extreme version of the procedure she had previously experienced. When she sat up after the treatment the pain was severe and she was quite shocked by that. In the days following she had neck pain, a headache and nausea.

[16]   She had a follow up appointment a week after the first appointment. She contacted Mr Pitt by text message two days prior to the second appointment and asked

him if she should be coming in because she was in pain. Mr Pitt told her it was all part of the process and she should attend her appointment. She attended the follow up appointment and allowed Mr Pitt to perform the same treatment. It again involved a strong and fast rotation of her head. She felt extreme pain between her shoulder blades. Mr Pitt said she should have weekly appointments as the pain would ease as would her chest congestion. After this appointment she felt pain in her neck for weeks. She also had nausea and a headache for several days.

[17]   The complainant did a Google search and saw that Mr Pitt was not a registered osteopath. She texted Mr Pitt and said that, as she required osteopathic treatment, she would prefer to see a registered osteopath. She then made an appointment with the osteopath she had been seeing off and on over the years. After seeing her osteopath she made a complaint to the Health and Disability Commission.

[18]   The complainant’s memory of what Mr Pitt had said to her at the first appointment was tested in cross-examination in the following exchanges:

Q. So Mr Pitt says, he explained his background, that he had had training as an osteopath in the past, do you recall that?

A. No, I don’t.

Q. And he said to you that he’s had training and had worked for many years doing osteopath work, but he was no longer doing that and he had an approach he was going to do with you?

A. I don’t recall him saying that he no longer did that.

Q. Okay, but you do recall him talking about his previous history as a –

A. I recall him saying he had experience in osteopathy.

Q. Osteopathy?

A. Yeah.

Q. And he talked about, he wanted to mobilize the area by relaxing the muscles in the upper back area and the neck?

A. I can’t remember.

Q. And, well, I need to put it to you. He didn’t tell you he was an osteopath directly did he?

A. Yes, he did.

Q. So your recollection is –

A. It is. He very clearly said to me: “You’re lucky, I’m an osteopath as well as a naturopath and I can treat you today.”

Q. Is it possible that you – because he will say it’s possible he said: “I’ve got time today. You’re lucky I’ve got time today”?

A. No.

Q. You say that those words are definite?

A. I’m very clear on that.

[19]   The complainant was also tested on her recollection of the treatment she received. It was put to her that her head was slowly rolled to the side. She disagreed with this.

[20]   The prosecution also called evidence from the complainant’s osteopath. He gave evidence that he used HVLA treatment on her. He explained the technique involved with that treatment. After receiving this treatment the complainant’s pain eased relatively rapidly.

[21]   The prosecution also called expert evidence about the HVLA technique from Professor Duncan Reid. Based on the complainant’s evidence of the treatment she had received from Mr Pitt, it was Professor Reid’s opinion that Mr Pitt had performed this technique on the complainant. In his opinion it was not simply mobilisation or an alignment of her neck.

[22]   Mr Pitt elected to give evidence in his defence. He said he did not use the HVLA technique and had not used it since 2002. Rather, he relaxed the muscular skeletal system and then realigned the spine using mobilisation. His mobilisation procedure was a derivative of the HVLA. His procedure involved a firm rotation but not a flick with velocity as is the case with the HVLA technique.

[23]   Mr Pitt said that it became clear to him that the underlying cause of her chest congestion was neck pressure and until this was addressed there was little point in talking about other naturopathic approaches that could help her situation. He was

asked about what he said to the complainant about being an osteopath in the following exchange:

Q. And I just want to – there’s a comment that she’s made that you told her: “You’re lucky I’m an osteopath as well as a naturopath,” can you just explain what was spoken between you about being an osteopath?

A. It’s not a term which I am familiar with using, however, that doesn’t mean to say I didn’t use it on that day because here she was in front of me and she needed some treatment, and if she wanted to use me, then it was lucky that I had an osteopathic background and was qualified as an osteopath and the word I would’ve used would’ve been “qualified osteopath” not “registered osteopath”.

Q. But did you tell her you were going to give her an osteopathic treatment?

A. No, I was giving her naturopathic treatment.

[24]In cross-examination the following exchange occurred:

Q. Now, when [the complainant] came to you for treatment on 7th of November 2018, you told her that her neck was out of alignment and that it needed to be adjusted, didn't you?

A. Correct.

Q. And you then went on to tell her that she was lucky because you were an osteopath as well as a naturopath, didn’t you?

A. I would have said that – “lucky” is not a word I use, but I fully expect that I did use it on that occasion because we were looking at a timeframe and I am a qualified osteopath but I’m not a registered osteopath and I doubt if I would’ve spelt that out. I would’ve simply said I’m a qualified osteopath.

[25]The cross-examination on this topic continued:

Q. And what you were saying when you wrote [to the Health and Disability Commission was] that: “I advised her that I was registered,” what you were saying was that you’d told [the complainant] that you were registered as an osteopath?

A. Registered as a naturopath.

Q. Well, I put to you, Mr Pitt, that what [the complainant] has told the Court is that you told her that you were an osteopath?

A. If I was gonna – certainly could have interpreted that, but it’s not what I say. It is not what I am.

Q. So just tell me again specifically what you told [the complainant]?

A. It’s two and a half years ago. I’m sorry I can't tell you exactly what I would’ve said.

Q. So you can’t be sure then that you didn’t say to [the complainant]: “I am an osteopath.”

A. No, I can’t be sure but I do not practise as an osteopath; I practise as a naturopath, but I am a qualified osteopath and she could’ve picked that up you see.

Q. But you’re not qualified because you’re not registered or hold a practising certificate?

A. I am qualified but not registered.

[26]   Mr Pitt maintained in cross-examination that he had not used the HVLA technique. He also said that pain from his treatment was a plausible outcome. His normal process would be to refer a client to a medical practitioner if the pain had not receded by the third visit, who could prescribe pain relief if appropriate.

Judgment

[27]   The Judge gave an oral judgment. He first recited the charges. He then summarised the evidence. In doing so, when summarising the complainant’s evidence in chief he commented:

[5] I have to say at this point in time that Mr Pitt says that he does not say and would not say to her that he is a registered osteopath just that he was a qualified osteopath and to be fair [the complainant] does not say that he was a registered osteopath.

[28]   Similarly, when summarising the cross-examination of the complainant, the Judge said:

[9] … Again she repeated that he had told her: “You’re lucky I’m an osteopath as well as a naturopath,” but the word registered does not appear to have arisen. …

[29]When summarising Mr Pitt’s evidence, the Judge said:

[14] … He said that he would have told [the complainant] that he was a qualified osteopath but he would not have described himself as a registered osteopath because he simply is not one. …

[30]   After summarising the evidence, the Judge gave his reasons for dismissing the charges as follows:

[16] The decision at the end of the day is mine. Did Mr Pitt perform a restricted activity, namely, a high velocity low amplitude manipulative technique to [the complainant’s] cervical spine joints? It is always difficult where there is no specific medical person other than Mr Pitt who was present. There was no other person other than him and [the complainant] so it is basically a he says/she  says  situation and  although I was concerned  that  Dr Reid was able to say that what [the complainant] described was an HVLA procedure, Mr Pitt’s evidence leaves me in the position where I am not sure

whether or not he performed that procedure and accordingly all three charges are dismissed.

[31]After a short pause in delivering these reasons, he added:5

[1]       I do not believe he held himself out as a registered osteopath either. He may have said he was a qualified osteopath but not a registered one.

The appeal

[32]   The Ministry submits that it is clear from the judgment that the Judge proceeded on the basis that the s 7(2) offence requires that the person hold themselves out as a registered osteopath. In doing so, he misdirected himself.

[33]   Mr Pitt accepts that the offence can be committed if the person holds themself out as an osteopath and that there is no requirement that they represent themselves to be a registered osteopath. He submits the Judge correctly set out the charge and so was aware of what the offence required. He says the Judge’s repeated comments that Mr Pitt did not say he was registered reflected the way the prosecutor had cross-examined him – specifically, putting to him that he was not qualified because he was not registered.

[34]   Mr Pitt also says the Judge accepted his account of what was said, and as to the treatment given, was a reasonable possibility on a he says/she says case, and that is why he was acquitted on the charges. Mr Pitt’s account was consistent with being a statement about the past (he was qualified) rather than that he presently was practising as an osteopath. The Judge’s finding that Mr Pitt had not carried out the restricted HVLA treatment supported this conclusion.

[35]   I am not satisfied the Judge correctly applied the requirements of s 7(2). Although he set out the charge at the outset of his judgment, he did not set out s 7(2) of the Act or show that he had turned his mind to what that offence required. The Judge’s repeated references to Mr Pitt not having said that he was a registered osteopath are not explained by the cross-examination. Mr Pitt drew a distinction

5 The transcription of the Judge’s oral judgment did not originally include the Judge’s further remarks after the pause. This is why the paragraph numbering of this part of the judgment begins again at [1].

between saying he was an osteopath or that he was a qualified osteopath (either of which he may have said) and saying he was a registered osteopath (which he did not say). But the fact that he did not say he was a registered osteopath was not determinative.

[36]   The issue was whether, in saying that he was on osteopath or a qualified osteopath, in the circumstances in which he said it, he had claimed to be practising as an osteopath or suggested that he practises as an osteopath. The Judge did not address this issue. As the parties accept, such a claim or suggestion can be made by someone without them stating that they are registered. Even if the Judge gave Mr Pitt the benefit of the doubt and proceeded on his account of what he said, it was capable of being a claim to be practising as an osteopath or suggesting that he practised as an osteopath. And this was so even with the Judge being unsure that Mr Pitt had carried out the HVLA treatment on the complainant.

[37]   It might be asked why Mr Pitt would say that he was an osteopath, in the context of explaining the neck treatment he proposed to give the complainant, if he was not intending that to be relevant to her assessment of whether she consented to the treatment proposed. Mr Pitt says that it was a statement of the past – that is, he qualified as an osteopath and so had knowledge about neck alignment. It was not a statement that he was practising as an osteopath and was about to give an osteopathic treatment. The problem is that the Judge made no finding about this because he wrongly focussed on whether Mr Pitt had said he was registered.

[38]   I conclude that the Judge misdirected himself when dismissing Mr Pitt on the charge under s 7(2) of the Act. The next question is as to the order that should now be made.

Determination of appeal

[39]   Section 300 of the Criminal Procedure Act 2011 applies to this appeal. It provides:

300     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart by—

(a)confirming the ruling appealed against; or

(b)doing any of the following if the court considers the ruling is erroneous and, in the case of the person’s conviction or acquittal or of a direction by a court to stay the prosecution or to dismiss the charge under section 147, also resulted in a miscarriage of justice:

(i)setting aside the conviction and entering an acquittal, if the person has been convicted; or

(ii)directing a new trial, in any case; or

(c)varying or substituting the sentence or remitting the sentence to the sentencing court with directions, if the decision relates to sentence and the court thinks the decision is erroneous; or

(d)remitting the matter to the trial court in accordance with the opinion of the appeal court; or

(e)making any other order that the court considers justice requires.

…

[40]   The Ministry submits an order should be made under s 300(1)(d) remitting the charge back to the trial court for determination in accordance with this judgment. This would mean that the trial Judge would be directed to consider the charge, on the evidence he had already heard, but on the basis that the offence did not require Mr Pitt to have claimed he was a registered osteopath.

[41]   Mr Pitt submits that s 300(1)(d) is not an available option because there is now no trial court as a result of his acquittal. This is because s 5 of the Criminal Procedure Act defines “trial court” as meaning “the court before which the defendant … is to be tried”. As he has now been tried, Mr Pitt says there is no court before which he is to be tried.

[42]   This submission is supported by Commissioner of Inland Revenue v Parore.6 In that case the trial judge had ruled that there was no case to answer on seven charges. On appeal, the Judge considered that the trial judge had erred in law in making that

6      Commissioner of Inland Revenue v Parore [2021] NZHC 420.

ruling. The Judge said that, as the defendant had been acquitted on those charges, “he no longer ‘is to be tried’; there being no trial court to which the matter may be remitted.”7 The Judge directed a retrial but said it was to be on the basis of the evidence as it stood.

[43]   The Ministry submits that if this approach were applied here then the same outcome would follow. A retrial would be ordered under s 300(1)(b)(ii), with a direction under s 300(1)(e) that it be on the evidence already heard by the Court and any further submissions made by the parties in light of this appeal.

[44]   Mr Pitt submits that before a retrial can be ordered the first question is whether the Judge’s misdirection resulted in a miscarriage of justice. He submits it did not because the totality of the evidence supported the acquittal on a correct approach to  s 7(2) of the Act. He submits that Mr Pitt’s statements were about his qualification and not about whether he was a practising osteopath. In other words, it was a statement about the past and was not a statement about his present status for the purposes of his intention to perform an osteopathic restricted activity (on which he was acquitted).

[45]   Whether what was said was about the past, or whether the claim or suggestion was about Mr Pitt’s current position, is for the trial Judge to determine in the first instance in my view. If it was a claim or suggestion made about Mr Pitt’s present practice then the misdirection, in leading to an acquittal, would have resulted in a miscarriage  of  justice.  Therefore  I  am  satisfied  that  there  is  jurisdiction  under s 300(1)(b) to direct a retrial.

[46]   However, an order for a retrial along with a direction that the retrial be on the existing evidence, seems to me to be a somewhat circuitous route to the appropriate outcome. The definition of “trial court” in s 5 applies “unless the context otherwise requires”. I consider that the “trial court”, in the context of an appeal against an acquittal on a question of law under s 300, refers to the trial court in which the respondent was tried.  This means that on appeal the Court can direct a retrial under  s 300(1)(b), or it can make an order under s 300(1)(d) that the trial court determine the matter in accordance with the opinion of the appeal court on the question of law on

7 At [19].

which the trial court erred. Which order is the more appropriate one will depend on the circumstances.

[47]   In my view the appropriate course in this case is to make an order under        s 300(1)(d). A retrial would ordinarily mean a new trial with each side free to call whatever evidence they wished to call. This is unnecessary when the evidence has already been called and the trial Judge will have formed a view on that evidence when he determined the charges. There is no suggestion that the trial judge is now unavailable.

[48]   Lastly, Mr Pitt submits that the Court should decline to make an order for a retrial (or an order under s 300(1)(d)). He is 80 years of age. He has no prior history of similar complaints or issues. The redetermination would relate to one charge which has a maximum penalty of $10,000. The conduct in question was limited to the short discussion between Mr Pitt and the complainant on 7 November 2018 and there was no wider “holding out”. However, these are all matters that can be considered by the trial court in sentencing if Mr Pitt is convicted on the charge.

Result

[49]   The appeal is allowed. The proceeding is remitted to the trial Judge to determine the charge under s 7(2) of the Act, in accordance with the opinion of this Court that it was not necessary for Mr Pitt to have claimed or suggested that he was a registered osteopath in order to have committed the offence.

Mallon J