Ministry of Health v Pitt
[2021] NZHC 1789
•15 July 2021
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 1789
BETWEEN MINISTRY OF HEALTH
Applicant
AND
GEOFFREY RONALD PITT
Respondent
Hearing: 15 July 2021 Counsel:
S C Carter for Applicant
A B Darroch and E Wilson for Respondent
Judgment:
15 July 2021
ORAL JUDGMENT OF MALLON J
Introduction
[1] Geoffrey Pitt faced three charges under the Health Practitioners Competence Assurance Act 2003 (the Act), one in relation to allegations he falsely claimed he was an osteopath and two for allegations he performed a restricted treatment on the complainant. In a judge-alone trial he was acquitted of all three charges.1 The Ministry of Health now seeks to appeal that decision in relation to one of the charges.2 If leave is granted, the substantive appeal is to be dealt with separately.3
Factual background
[2] Mr Pitt, aged 80, trained as a bonesetter in the 1950s and completed training in osteopathy in 1983.
1 Ministry of Health v Pitt [2021] NZDC 8189.
2 Criminal Procedure Act 2011, s 296.
3 Direction of Simon France J, 31 March 2021.
MINISTRY OF HEALTH v PITT [2021] NZHC 1789 [15 July 2021]
[3] The Act regulates health professionals, including osteopaths. This means osteopaths must be registered and hold a practising certificate. Osteopaths are authorised to perform High Velocity Low Amplitude (HVLA) manipulation to the necks of patients.
[4] Mr Pitt was initially registered as an osteopath under the Act and was issued a practising certificate in 2003. It was not renewed in 2005. Following the decision of the Council not to renew the practising certificate, Mr Pitt wrote to the Council, confirming he had no intention of practising osteopathy or advertising himself as such from then on. It is accepted that he was not a registered osteopath and did not hold a practising certificate at the time of the matters which gave rise to the charges.
[5] On 7 and 14 November 2018, Mr Pitt saw a patient at his naturopath clinic in Wellington, who had sought treatment for chest congestion from him as a naturopath. The prosecution alleged that in the first hour-long session with this patient, Mr Pitt claimed or did something calculated to suggest that he practised as an osteopath when he did not hold a practising certificate as a health practitioner of that kind, in breach of s 7(2) of the Act.
[6] It also alleged that he breached s 9(1) and (4) of the Act by performing HVLA treatment but the acquittals on these charges are not challenged now by the Ministry.
Appeal
[7]Section 7 of the HPCAA 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.
[8] Leave to appeal is required. For leave to be granted there must be a question of law that arises, as relevant here, in the determination of the charge.4 If the Court is satisfied as to that, it has a discretion as to whether leave should be granted, taking into account whether the arguments may have merit and the question is of general importance.5
Jurisdiction
[9] The Ministry contends a misdirection of law is evident in the Judge’s decision in acquitting Mr Pitt on the charge under s 7(2). It says this is because the Judge proceeded on the basis that, in order for an offence to have been committed under s 7(2), the respondent must have specifically held himself out as a “registered” health practitioner. The Ministry submits there is no such requirement in s 7(2).
[10] In discussing the evidence, the Judge referred first to the evidence of the complainant and 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 patient] does not say that he said he was a registered osteopath.
[11]In discussing the cross-examination of the complainant, he 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. She said that on the second occasion that she felt her whole neck was being screwed off.
[12]Then, in discussing Mr Pitt’s evidence, the Judge said:
4 Criminal Procedure Act, s 296(2) and (3)(a).
5 R v Muraahi [2021] NZCA 214 at [8].
[14] … He said that he would have told [the patient] that he was a qualified osteopath but he would not have described himself as a registered osteopath because he simply is not one. …
[13]The Judge then reached the following conclusion:6
[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.
[14]That is the extent of Judge’s reasoning in relation to s 7(2).
[15] The Ministry frames the question of law as whether a person needs to specifically have held themselves out as being a registered health practitioner when they are not, rather than just holding themselves as a health practitioner without specific representation as to registration status. It submits the latter is the correct position, based on the provision and the statutory context.
[16] The respondent submits that, although the Judge referred to “registered” in the passages I have set out above, a correct reading of his decision overall is that he was not adding that as a requirement to a charge under s 7(2). The respondent notes that the Judge had the benefit of hearing the evidence says and the Ministry, in focussing on the references to “registered”, is taking the Judge’s reasoning of all the evidence out of context. The respondent submits that the Judge was referring to Mr Pitt’s evidence as a statement about past fact and not about his current status and on this basis there was insufficient evidence to establish the charge.
[17] While I consider that the respondent’s position is arguable, I also consider it is arguable that the Judge misdirected himself as contended by the Ministry in light of the repeated emphasis in the judgment on the word “registered”.
6 These are two typed oral judgments. The first one is the fuller one and discussed the evidence referred to in [10]-[12] above. The second one contained two paragraphs, including the paragraph cited at [13] above. Counsel explained that these remarks followed the longer version of his remarks after a short pause and this meant that when his ruling was typed up, it omitted the two paragraphs that followed after the pause. This is why there is a second typed oral judgment.
Discretion
[18] As to my discretion, the respondent submits that the appeal is contrary to the interests of justice given Mr Pitt’s limited culpability even if the charge was established and his personal circumstances. He says that even if the appeal was allowed and was successful, his low culpability, responsible approach to his work and his age would likely lead to a very minor penalty, if any. While I agree with that submission about outcome, I also agree with the Ministry that the proper approach to s 7(2) is an important one. I therefore consider that it is appropriate to grant leave in the interests of justice, notwithstanding Mr Pitt’s limited culpability and the likelihood of a very minor penalty, if any. Those are matters that would be taken into account if the appeal is successful.
Result
[19]I accordingly grant leave.
Mallon J