T v A Professional Conduct Committee

[2020] NZHC 1179

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINAL DISPOSITION OF APPEAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2464

[2020] NZHC 1179

IN THE MATTER

Of an appeal under Section 106(2)(a) of the Health Practitioners Competence Assurance Act 2003

BETWEEN

T

Appellant

AND

A Professional Conduct Committee Respondent

Hearing:	14 May 2020
Appearances:	H C Stuart for the Appellant A K Miller for the Respondent
Judgment:	2 June 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 2 June 2020 at 10.30 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

T v A Professional Conduct Committee [2020] NZHC 1179 [2 June 2020]

[1]                  The appellant, a chiropractor, has appealed a decision of the Health Practitioners Disciplinary Tribunal (“the Tribunal”) dated 14 October 2019. The Tribunal had found the appellant guilty of professional misconduct after the appellant had entered a sexual relationship with a patient.

[2]                  Ms Stuart for the appellant contends that the Tribunal erred in concluding the appellant’s conduct amounted to professional misconduct in terms of s 100(1)(a) or

(b) of the Health Practitioners Competence Assurance Act 2003 (“the Act”). In contrast, Ms Miller for the Professional Conduct Committee of the Chiropractic Board submitted that the Tribunal’s decision was correct.

[3]                  There is no dispute that this appeal is by way of rehearing. This means that I am required to make my own assessment of the merits of the case with the consequence that if I reach a different conclusion to that reached by the Tribunal, then the decision of the Tribunal is wrong.1

The legislative framework

[4]                  There is no dispute on the relevant legal principles with regard to the basis upon which a chiropractor like the appellant may be disciplined.

[5]Section 100 of the Act relevantly provides:

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

1      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and

[16] and Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

profession that the health practitioner practised at the time that the conduct occurred …

[6]                  To reach a finding of misconduct it is not enough simply to breach the relevant health disciplines code of conduct or code of ethics. Instead:2

[A]  Tribunal [is] required … to adopt a two-step inquiry to determine whether the charge of professional misconduct had been made out:3

(a)The first step required an objective analysis of whether or not the practitioner’s conduct could be reasonably regarded as comprising malpractice, negligence or having brought discredit to the nursing profession; and

(b)The second step required the Tribunal to be satisfied that the practitioner’s conduct warrants a disciplinary sanction for the purposes of protecting the public and/ or maintaining professional standards.

[7]                  The concepts of malpractice, negligence and whether a practitioner has brought discredit to the profession were also discussed in Cole. With regard to the concepts of malpractice and negligence Gendall J noted:4

Section 100(1)(a) of the Act, in describing the first ground for professional misconduct, refers to “any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence…” The courts have referred to the definition of “malpractice” as it is defined in the Collins English Dictionary (2nd ed) as:

immoral, illegal or unethical conduct or neglect of professional duties.

Similarly, in the Concise Oxford English Dictionary (Eleventh edition 2004) “malpractice” is defined as:

improper, illegal or negligent professional behaviour.

And, a finding of “negligence” requires the Tribunal to determine:

Whether or not, in the Tribunal’s judgment, the practitioner’s act or omissions fall below the standards reasonably expected of a health practitioner in the circumstances of the person appearing before the Tribunal. Whether or not there has been a breach of the appropriate standard is measured against the standard of a reasonable body of the practitioner’s peers.

2      Cole v Professional Conduct Committee of the Nursing Council of New Zealand [2017] NZHC 1178 at [37].

3      G v Director of Proceedings HC Auckland CIV-2009-404-951, 5 March 2010 at [32].

4      At [41] and [42] (footnotes omitted).

[8]                  The leading statement with regard to bringing the profession into disrepute is the statement of Warwick Gendall J in Collie v Nursing Council of New Zealand, cited in Cole, where His Honour stated:5

To discredit is to bring 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.

[9]                  A finding of malpractice, negligence or bringing discredit to the profession is not in itself sufficient to constitute professional misconduct. Instead, as both counsel agreed, it is necessary for the Tribunal to also determine that a disciplinary sanction be imposed on the practitioner. As Courtney J held in Martin v Director of Proceedings:6

[I]t cannot be that every departure from accepted professional standards or every unwise or immoral act by a health professional in his or her personal life should amount to professional misconduct for the purpose of s 100(1). The principal purpose of the Act is to protect the health and safety of members of the public. That purpose does not require a disciplinary response to the minor human errors that inevitably occur in professional practice nor the human transgressions that health professionals might commit in their personal lives. The need for a threshold to distinguish between this type of conduct and conduct that warrants a disciplinary response therefore exists under the current scheme as much as it did under the previous schemes.

[10]              Simon France J made similar comments in Vatsyayann v Professional Conduct Committee, finding the breach must be of sufficient significance to merit recording a finding of professional misconduct against the practitioner.7

The factual background and the Tribunal’s decision

[11]              There is no dispute that the appellant entered a sexual relationship with the complainant. She had in fact met the complainant at a martial arts gym in October 2016 and they had become friends. After the complainant injured his back undertaking martial arts, on 25 January 2017 the appellant provided the complainant with

5      Collie v Nursing Council of New Zealand [2001] NZAR 74 (HC) at [28].

6      Martin v Director of Proceedings [2010] NZAR 333 (HC) at [23].

7      Vatsyayann v Professional Conduct Committee HC Wellington CIV-2009-485-259, 14 August 2009, at [8].

chiropractic treatment. No further treatment was provided at this time. Three days later, on 28 January 2017, the appellant and the respondent commenced a sexual relationship. Despite various ups and downs this continued until formally ending on 27 May 2017, with the appellant providing the complainant with a further seven chiropractic treatments between 24 February 2017 and 25 May 2017.

[12]              The appellant’s conduct stands to be considered against her obligations contained in the code of ethics promulgated by the Chiropractic Board of New Zealand pursuant to the Act in February 2013 (“the Chiropractic Board Code of Ethics”).

[13]              The purpose of the code is spelt out in clauses 1.2 and 1.3 in the following terms:

This Code is designed to support and guide chiropractors in the provision of chiropractic care within an ethical framework. Chiropractors have a responsibility to be familiar with this Code and comply with the standards contained within.

The Public can expect that all chiropractors will understand and adhere to the standards of this Code.

[14]The critical provision is however clause 2.1.4 which relevantly provides:8

2.1.4    Interactions with Patients – Sexual Misconduct

A chiropractor cannot have a sexual relationship with a patient unless that patient is the chiropractor’s spouse or partner. Sexual behaviour in a professional context is abusive. Sexual behaviour includes but is not limited to the following:

2.1.4.1.1the use of language (whether written, electronic or spoken) of a sexual nature;

2.1.4.1.2the use of visual material of a sexual nature;

2.1.4.1.3physical behaviour of a sexual nature.

The Board condemns all forms of sexual misconduct in the chiropractor/patient relationship. The Board impresses on chiropractors the need for open and clear communication to avoid misinterpretations and misperceptions. The consent of a patient to sexual contact does not necessarily preclude a finding of misconduct against the chiropractor by the Board.

8      The remainder of clause 2.1.4 goes on to set out a guide in order to assist in determining whether and to what extent sexual misconduct has occurred.

[15]              The Tribunal concluded that the appellant’s acknowledged sexual relationship with the complainant breached the first part of the clause, finding that the complainant was not the appellant’s spouse or partner when the sexual relationship began.9 The Tribunal indeed went on to state that at no time could the relationship between the appellant and the complainant “be described as ‘spouse or partner’”.10 The Tribunal then stated:11

The Tribunal finds that the reputation of the chiropractic profession was lowered by Dr N’s actions. Members of the public seeking chiropractic services are entitled to expect that chiropractors will act in a manner that is consistent with the standards of practice and ethical conduct set by the Chiropractic Board. The Code of Health and Disability Services Consumers’ Rights also creates a right for every consumer to have services that comply with “professional, ethical and other relevant standards”.12 Dr N appears to have been naïve in her thinking that by not charging Mr H for her chiropractic services to Mr H, in some way mitigated being in breach of the professional standards expected of her.

The Tribunal finds that the Charge of professional misconduct is established. During the period February 2017 until May 2017 Dr N acted in an inappropriate and unprofessional manner by entering into and having a sexual relationship with her patient. This professional misconduct amounts to malpractice and/or negligence and is also likely to bring discredit to the profession of chiropractic.

[16]              Despite having already found a charge of professional conduct made out, the Tribunal went on to consider whether a penalty should be imposed. In this regard the Tribunal found:13

The Tribunal is satisfied that in this case the professional misconduct is sufficiently serious to require a disciplinary sanction. In making an assessment on the threshold the Tribunal has taken into account: the intensity of the clinical relationship; the vulnerability of the patient, the extent of the practitioner's insight into his/her conduct, and the duration of the sexual relationship.

In this case, Mr H was clearly vulnerable. The Tribunal does not accept there was no power imbalance between the pair simply because they were both consenting adults of a similar age. Dr N says Mr H always had the option of seeing an alternative chiropractor.

9      A Professional Conduct Committee appointed by the Chiropractic Board of New Zealand v Dr N

HPDT 1048/Chiro 18/432P dated 9 July 2019 at [33].

10 At [42].

11     At [44]-[45].

12     Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Right 4(2).

13     At [56]-[57] and [58] – [59] (footnotes omitted).

…

When identifying the threshold for disciplinary sanction, the Tribunal recognises that this assessment is one of degree. The gravity of the conduct should be reflected in the penalty rather than in the actual finding of professional misconduct. Whilst there may be some differences in the Code of Ethics for chiropractors, a practitioner’s obligations regarding sexual boundaries in the practitioner/patient relationship are the same as any other health practitioner. In any event, the Tribunal has found that Mr H was not Dr N's partner and therefore the "partner exception" in the Code of Ethics does not apply.

The Tribunal determines that a sanction is required to meet the primary objective of the Act, namely to protect the public and maintain appropriate professional standards for the chiropractic profession. An essential feature of any health profession is that trust is placed in it by members of the public that in carrying out their duties in a way that does not breach ethical and clinical boundaries set for the profession. There is a community expectation that such conduct amounts to malpractice and is a serious matter of discredit to the profession. Any sexual relationship with a patient or breach of these boundaries in this context adversely affects the practitioner’s fitness to practise.

[17]              As a result, the Tribunal moved on to determine the appropriate penalty, and proceeded to censure the appellant and ordered her to pay a contribution towards the costs of the Professional Conduct Committee.14

Discussion

[18]              The summary of the Tribunal’s decision makes it clear that it did not follow the two-stage process to determine whether professional misconduct had occurred, without having considered whether a penalty should be imposed. This is important as the finding of professional misconduct clearly coloured the analysis of whether a penalty was required.

[19]              Even more significantly, it is clear that in reaching its conclusion on professional misconduct the Tribunal took into account not just the allegation that the appellant had conducted herself in inappropriate and/or unprofessional way by entering into an intimate and/or sexual relationship with a current patient as specified in the charge, but rather:15

14     At [81] – [83].

15 At [45].

The Tribunal finds that the Charge of professional misconduct is established. During the period February 2017 until May 2017 Dr N acted in an inappropriate and unprofessional manner by entering into and having a sexual relationship with her patient. This professional misconduct amounts to malpractice and/or negligence and is also likely to bring discredit to the profession of chiropractic.

(emphasis added)

[20]              This is significant as it meant the conduct that the Tribunal had found the appellant guilty of went well beyond that with which the appellant had been charged. It also shows clearly that with normal usage the words “by entering” refers only to the start of the relationship with the complainant at a single point in time rather than to the relationship itself as it subsequently unfolded.

[21]              Ms Miller’s submission that the dates were inclusive and the Tribunal was entitled to look at the wider course of the relationship because that was part of the agreed statement of facts does not provide an answer. The fact that the agreed statement of facts is wider than the charge cannot widen the scope of the facts that are relevant to the charge itself. Likewise, the submission that the Tribunal could have amended the charge does not assist. The charge was in fact not amended and it must therefore be given effect according to its terms, notwithstanding there is additional information in the agreed summary of facts.

[22]              It follows that the Tribunal’s focus in determining the charge against the appellant depended on whether “by entering” a sexual relationship with the complainant the appellant was guilty of professional misconduct that required sanction, rather than on subsequent conduct for which the appellant was never charged.

[23]              The first step in this analysis is to determine whether the appellant was in breach of the Chiropractic Board Code of Ethics. On this first issue it is clear that the Tribunal was correct. As I discussed with counsel at the hearing, it is clear that notwithstanding the fact clause 2.1.4 is less than elegantly drafted, the Chiropractic Board “condemns all forms of sexual misconduct” with such sexual misconduct being made up of:

(a)sexual relationships with patients other than the chiropractor’s spouse or partner; and/or

(b)sexual behaviour (as defined in 2.1.4.1.1 – 2.1.4.1.3) in a professional context.

[24]              In this case it is not disputed that the appellant and the complainant entered a sexual relationship, nor can there be any dispute that the complainant was a patient at the time the sexual relationship began. The complainant had after all only been treated three days prior to the couple having sex and there was no indication from the medical notes of that treatment that this was intended to be the only consultation, nor did it prove to be so. It is equally clear from the appellant’s own statements that at the time the sexual relationship began the complainant was not her spouse or partner, nor is there any other evidence to suggest that the appellant and the complainant were other than friends at the time the sexual relationship was entered into which means the exception does not apply.

[25]              As the relevant legal principles section of this judgment makes clear the fact that the conduct breaches a professional code of ethics does not however mean that professional misconduct has been established. Instead the wider circumstances must be considered to determine whether the breach amounts to professional misconduct in terms of s 100(1)(a) or (b) and then whether it is sufficiently serious to warrant a penalty.16

[26]              With regard to the s 100 analysis, as Ms Miller noted, there is no real suggestion that by entering a sexual relationship with the complainant the appellant’s conduct amounted to malpractice or negligence for the purposes of s 100(1)(a). Instead, the focus is necessarily on whether the appellant’s actions in entering the sexual relationship with the complainant “was likely to bring discredit to the [chiropractic] profession” in terms of s 100(1)(b) of the Act.

16     At [6] – [10] herein.

[27]              The analysis necessarily includes looking at all the circumstances known about the start of the relationship in order to reach a conclusion as to:17

Whether reasonable members of the public, informed and with knowledge of all the factual circumstances could reasonably conclude the reputation and good standing of the [chiropractic] profession was lowered by the behaviour of the [chiropractor] concerned.

[28]Undertaking this enquiry, the following matters are clearly relevant:

(a)The fact the appellant and the complainant had first met and enjoyed a growing friendship over some months prior to and outside any professional relationship that was commenced.

(b)At the time the sexual relationship commenced only one treatment had been provided by the appellant to the complainant (albeit only three days before), there was no evidence that any follow up treatments were contemplated, nor was there any indication that the treatment provided by the appellant was not appropriate or otherwise provided appropriately.

(c)There is nothing in the available evidence to suggest that the commencement of the sexual relationship was in any way the result of any imbalance arising out of the professional relationship between the appellant and the complainant but rather had arisen out of the pre- existing friendship. The available information does not suggest the entry into the sexual relationship was other than consensual at the time the relationship was entered into or that the appellant and the complainant entered the relationship on any basis other than equality, noting in particular there is absolutely no evidence that the complainant could in any way have been characterised as “vulnerable” at that time the relationship began.

[29]              Against those considerations the only significant aggravating factor was the appellant’s           clear  lack     of      awareness         of   her    ethical    obligations    under   the

17     Collie v Nursing Council of New Zealand [2001] NZAR 74 (HC) at [28].

Chiropractic Board Code of Ethics with regard to sexual misconduct and in particular ethical obligations regarding entry into sexual relationships. It is clear from the appellant’s response to the investigation that she had not considered the ethical implications of a sexual relationship with the complainant at the time it began and this was clearly contrary to her professional obligations set out in clauses 1.2 and 1.3 of the Chiropractic Board Code of Ethics.

[30]              Overall however I am satisfied that applying the test in Collie,18 the appellant’s behaviour would not have brought, or was likely to bring, discredit to the chiropractic profession. The fact that ultimately the relationship proved volatile, and the fact that the complainant became increasingly unhappy after he found out the appellant wanted to end the relationship against a backdrop of a number of additional treatments provided by the appellant is simply not relevant to the conduct for which the disciplinary charge was brought.

[31]              In the absence of a breach of s 100(1)(a) or (b) it follows the appellant cannot be guilty of professional misconduct and the appeal must be allowed. Even if I am wrong in that conclusion the matters relevant to my analysis of s 100(1) would also militate against any conclusion that any misconduct established would be sufficiently serious to warrant a sanction by way of penalty and therefore on that basis as well the appellant would have been found not guilty of professional misconduct.

Decision

[32]              The appeal is allowed. The finding of professional misconduct against the appellant is quashed and the penalty imposed by the Tribunal against the appellant set aside.

[33]              The appellant is entitled to costs. In the event that these cannot be agreed the appellant will have 14 days to file a memorandum and the respondent 14 days to respond. I will then determine the issue on the papers.

18     At [27] herein.

[34]              The parties are also to confer as to whether there is agreement regarding the issue of name suppression. In the event that there is an agreement a joint memorandum is to be filed confirming the position. In the event that there is no agreement the appellant will have 21 days to file a memorandum following which the respondent will have 21 days to respond. I will then determine the issue on the papers. In the meantime the current interim name suppression orders remain in force.

Powell J