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New Zealand Health Practitioners Disciplinary Tribunal |
349 
(13 December 2010)
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349 (13 December 2010)Last Updated: 12 November 2014
Level 13, Mid City Tower, 139 Willis Street, Wellington
6011
PO Box 11649, Manners Street, Wellington 6142, New Zealand
Telephone:
64 4 381 6816 Facsimile: 64 4 802 4831
Email: kdavies@hpdt.org.nz
Website: www.hpdt.org.nz
DECISION NO: 349 /Med10//157P
IN THE MATTER of the Health Practitioners
Competence Assurance Act 2003
AND
IN THE MATTER of a charge laid by a Professional Conduct Committee against DR K, registered medical practitioner
BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HEARING held in Wellington on 13 December 2010
TRIBUNAL: Mr B A Corkill QC (Chairperson)
Ms A Kinzett, Dr J Kimber, Dr S Purchas, and Dr K Wallis
(Members)
Ms K Davies (Executive Officer) Ms J Kennedy (Stenographer)
APPEARANCES: Mr M Heron and Mr M Thomas, for the Professional Conduct
Committee
Mr A H Waalkens QC, for Dr K
Introduction:
1. Dr K is a registered medical practitioner.
2. On 30 June 2010, the PCC laid a charge with two particulars against Dr K alleging an intimate and/or sexual relationship with Ms L and further alleging a failure to produce relevant documents.
3. The charge, however, was amended by consent at the hearing, and in its amended form alleged:
“Between April 2008 and July 2008, Dr K entered into an inappropriate emotional relationship with Ms L whilst Ms L was a recent former patient of his.”
4. By decision dated 12 August 2010, a permanent order was made preventing publication of identifying features of Ms L, and her partner Mr S who was the complainant.1 By a further decision, of the same date, an interim order was made preventing publication of the name and any identifying features of Dr K, until further order of the Tribunal.2 At the conclusion of the hearing, the Tribunal made permanent orders in respect of Dr K, as is explained more fully below.
5. At the commencement of the hearing, Dr K through Counsel admitted the charge of professional misconduct, following the amendment of the charge as above; and the parties also placed an agreed statement of facts before the Tribunal. This allowed the hearing to proceed in an efficient and economic way.
Agreed Summary of Facts:
6. The Agreed Summary of Facts, as anonymised to comply with the non-publication orders, stated:
1 Decision 322/Med10/157P.
2 Decision 323/Med10/157P.
“Background
1. Dr K is a 37 year old registered medical practitioner who graduated from the University of Birmingham .... He worked as a medical practitioner in the United Kingdom before moving to New Zealand ...
2. Since ... 2003, Dr K has been registered with the Medical Council of New Zealand in a provisional scope of practice. [In] he became registered in a general scope of practice.
Ms L's consultations with Dr K
3. From late 2007 onwards, Ms L was a registered patient ... [which] is a provider of primary health services for the region.
4. In early April 2008, ... a general practitioner ..., referred Ms L to Dr K for medical [treatment] ...
5. On 2 April 2008, Ms L had her first consultation with Dr K. Ms L's husband, Mr S, also attended this consultation. [Options for unexpected treatment were discussed]
6. On 8 April 2008, Ms L consulted Dr K for further advice regarding [proposed treatment] ... There is no record of the advice given by Dr K in the consultation note. However, following lengthy discussions between Ms L
& Mr S they decided [to have treatment].
7. It was on or about 8 April 2008 that Ms L had [medical treatment from] Dr K.
8. On 23 April 2008, Ms L had her third and final consultation with Dr K. The consultation note records that this was a follow-up appointment, but the subject is marked as confidential.
9. Dr K gave Ms L his mobile phone number and told her to call him at any time. This being standard advice that Dr K gives to his patients.
Relationship between Ms L and Dr K
10. Following [the treatment], Mr S noticed that Ms L seemed a bit "closed off".
11. Sometime after 23 April 2008, Dr K and Ms L commenced a relationship which continued through to late July 2008. Initially the relationship was one as friends although it subsequently developed into an emotional relationship including some sexualised text messages between the two. At the time that the relationship commenced, Ms L was a recent former patient of Dr K.
12. On 23 May 2008, Dr K acknowledged to another practitioner, that he had had an emotional relationship with a former patient. Dr K informed that he had recently ended the emotional relationship with the former patient.
13. Sometime between late June 2008 and early July 2008, Dr K's relationship with Ms L ended.
14. In July 2008, Mr S and Ms L reconciled and returned to living together.
15. On 27 July 2008, Mr S received a text message from Ms L. Mr S described the text message as being a "sex text". The text message included the words "you're my [name] bear - you will always be in my heart".
16. Mr S then examined Ms L's phone and found text messages of a sexual nature from Dr K stored on her phone.
17. Mr S confronted Ms L about the text messages he had discovered.
18. After Mr S discovered the text messages on Ms L's phone, they separated again.
19. In 2009, Ms L and Mr S resumed their relationship.
Professional Conduct Committee
20. On or about 28 May 2009, a Professional Conduct Committee ("PCC") was established by the Medical Council to investigate Dr K's conduct.
21. The PCC received an undated letter from Ms L during its investigation, which:
(a) Expressed her objection and surprise that the investigation was proceeding against Dr K;
(b) Objected to her medical records being accessed or used in any way with respect to this matter; and
(c) Stated "I would like to state clearly and fully that I have not had a sexual relationship with Dr K ...".
22. The PCC obtained records from Telecom showing call traffic from Dr K's cellphone to Ms L's cellphone between 1 April 2008 and 31 August 2008.
23. In summary, the Telecom records show, inter alia, that:
(a) Between 3 April 2008 and 6 August 2008, there were a total of 31 successfully connected phone calls made from Dr K's phone to Ms L's phone, totalling over 4 hours of call time;
(b) Between 16 April 2008 and 6 August 2008, there were a total of 361 text messages sent from Dr K's phone to Ms L's phone;
(c) Between 1 May 2008 and 25 May 2008, there were phone calls made, or text messages sent, every day from Dr K's phone to Ms L's phone;
(d) On 3 May 2008, there were 10 text messages sent from Dr K's phone to
Ms L's phone - the first at 8:44am and the last at 10:07pm;
(e) On 9 May 2008, there were 12 text messages sent from Dr K's phone to
Ms L's phone between 8:23pm and 10:10pm; and
(f) On 11 May 2008, there were 14 text messages sent from Dr K's phone to Ms L's phone between 12:38am and 8:27pm.
24. Having considered all of the information set out above, the PCC ultimately recommended that a charge of professional misconduct be brought against Dr K before the Tribunal.
25. Ms L subsequently sent an undated letter to the Health Practitioners
Disciplinary Tribunal, which was received by the Tribunal on 6 October
2010. In that letter, Ms L:
(a) Protested and objected to the use of her medical records and in particular that the information therein may have been shared with her partner and possibly his mother and her partner; and
(b) Repeated her rejection of the allegations of a sexual relationship stating:
(i) “I have never had an intimate or sexual relationship with Dr K!”; (ii) “Dr K’s care for me during the very brief period that he acted as
my doctor was professional and exemplary!”; and
(iii) “Any friendship that developed between Dr K and myself after my medical care was purely platonic!”.
Previous appearances
26. Dr K has not previously appeared before this Tribunal or any of its predecessors.”
Standards:
7. It was submitted by the PCC that assistance could be derived from the Medical Council’s booklet, “Sexual Boundaries in the Doctor/Patient Relationship – a Resource for Doctors”. This booklet outlines the Council’s position in relation to sexual boundaries (paragraph 1) as follows:
“The Council has a zero-tolerance position on doctors who breach sexual boundaries with a current patient. In the Council’s view it is also wrong for a doctor to enter into a relationship with a former patient or a close relative of a
patient if this breaches the trust the patient placed in the doctor.” (paragraph
1)
8. Later, the booklet states:
“A breach of sexual boundaries comprises any words, behaviour or actions designed or intended to arouse or gratify sexual desires. It is not limited to genital or physical behaviour. It incorporates any words, actions or behaviour that could reasonably be interpreted as sexually inappropriate or unprofessional.” (paragraph 5)
“... [R]esearch shows that a former patient may still be harmed by having a relationship with his or her former doctor even if he or she has been transferred to another doctor. Although not definitive, the research indicates that harm is often linked to the intensity of the doctor/patient relationship. For example, the length of the professional relationship, the frequency of contact and the type of care provided.
Because each doctor/patient relationship is individual, and because everyone reacts differently to circumstances, it is difficult to have clear rules on when it is or is not acceptable for a doctor to have a relationship with a former patient.
...
It is important that you recognise the influence you have had as the patient’s doctor, and that the resulting power imbalance from the professional relationship may continue for some time after the patient stops consulting you.” (paragraphs 72-79)
“The doctor/patient relationship is often very intense. Even though it may not be thought so by either you or your patient, by considering the above points you can more accurately assess the intensity.”3 (paragraph 82)
11.1. O – 47/Nur05/25:
3 The New Zealand Medical Association’s “Code of Ethics for the New Zealand Medical Profession” also contains relevant guidance, to similar effect; although it was not a directly applicable standard in the present case because Dr K is not, the Tribunal was advised, a member of NZMA.
“... [T]he Tribunal wishes to stress any health professional who develops a relationship of an intimate nature with a patient risks serious disciplinary consequences. Even though the relationship in this case did not involve physical sexual intercourse, the relationship was one in which Ms O became deeply emotionally involved with the prisoner who was also her patient. All health professionals must appreciate that inappropriate relationships with patients will not be tolerated. A professional relationship between a patient and a health professional involves bonds of trust which are eroded whenever a health professional takes advantage of their position to further their own emotional needs ...” (paragraph 28)
11.2. Wiles – 135/00/65D:
“We also emphasise that it is the responsibility of the doctor to maintain boundaries in the doctor/patient relationship, and to ensure that the interests of the patient or former patient are protected.
Having made these comments we emphasise that every case must be considered on its own merits ...” (paragraphs 5.13 and 5.14).4
Discussion as to Professional Misconduct:
12. Although Dr K accepted that the elements of the charge were made out as one of professional misconduct, the Tribunal was required independently to consider this issue.
13. On the evidence before the Tribunal there was no doubt that:
13.1. Ms L was a patient of Dr K’s over three consultations over the course of April
2008, for the purposes of issues relating to unexpected treatment. The evidence confirms that she was very shocked at the situation, and was struggling with thrush; additionally she was exhausted, lacked routine, and was struggling to cope with young children. These were the circumstances in which she was Dr K’s patient.
13.2. Following treatment which Dr K gave, he commenced a relationship from
sometime after 23 April 2008, which continued to late July 2008. Although
4 The conclusion of the majority of the Tribunal members which includes this passage, was upheld in the District
Court and High Court.
the relationship was one where the two were friends, it subsequently developed into an emotional relationship including some sexualised text messages between the two. This was in the context where she was obviously a recent former patient of Dr K.
13.3. On the basis of the admitted facts, then, the factual elements of the particular are clearly established.
14.1. The objective evidence indicates that Ms L was very vulnerable in the weeks preceding the commencement of the emotional relationship with Dr K, because of the circumstances summarised at paragraph 13.1 above. Although, as will be developed hereafter in relation to penalty issues, the extent of the vulnerability was not accepted by Counsel for Dr K, the Tribunal is well satisfied that the circumstances in which he gave her medical care, demonstrate on the basis of the contemporary records, that she was indeed vulnerable.
14.2. Ms L was a recent former patient: from almost immediately after the final consultation on 23 April, Dr K was in regular text and phone contact with Ms L. This was squarely within the warning of the Medical Council booklet, which states that if a patient has only recently become a former patient, sufficient time may not have passed for the emotional connection as a patient to abate. That was clearly the case here.
14.3. Ms L was not referred for independent counselling: the Medical Council also states that it may be appropriate for a doctor to help a patient to obtain independent counselling, in circumstances where a relationship is being considered. There is no evidence that this advice was given to Ms L. She was not referred for independent counselling or advice.
14.4. There was also a lack of insight: in the agreed summary of facts, it is stated that Dr K acknowledged to another practitioner that he had had an emotional relationship with a former patient, on 23 May 2008. It is also evident from the evidence that the relationship did not end at that point, but continued until July
2008. The statement to the colleague is revealing. It indicates Dr K must have realised the relationship was inappropriate; yet he did not address the issues. He maintained the relationship. The Tribunal can only conclude that he was putting his own interests first, and did not have sufficient regard for the professional issues involved, and the best interests of the patient.
15. There was a significant disregard for proper boundaries between doctor and a recent former patient. For those reasons, it concludes that the matter is so serious as to warrant discipline.
16. The Tribunal considers that the conduct involved amounts to both malpractice and the bringing of discredit to the profession. Accordingly the charge of professional misconduct was established.
Penalty:
17. After announcing the above conclusion, the parties made submissions as to penalty.
18. For the PCC it was submitted:
18.1. Previous decisions of the Tribunal established that where professional misconduct existed on the basis of an inappropriate sexual relationship with a current or former patient, cancellation or suspension of registration would usually follow. It was recognised, however, that in the present case the Tribunal may find that the conduct was less serious than in some cases, there being no evidence of actual physical sexual conduct in this case. Accordingly it was open to the Tribunal to determine that a lesser penalty was sufficient.
18.2. A number of previous decisions were referred to.5 It was emphasised, however, that all cases are fact specific.
18.3. It was submitted that aggravating factors were the vulnerability of Ms L, the duration of the relationship, and the harm to Ms L and her family.
18.4. A victim impact statement from the complainant Mr S was produced. He stated separation from Ms L occurred after learning of the relationship, and that they separated twice following the relationship.
18.5. It was submitted that conditions, censure, fine and costs would be appropriate.
The PCC costs were approximately $105,000.00 plus GST, and the Tribunal costs were approximately $22,800.00 plus GST.
19. For Dr K it was submitted:
19.1. Dr K had no prior convictions or adverse findings of any kind.
19.2. The conduct was at the lowest end of offending.
19.3. There was no evidence of vulnerability; an affidavit from Ms L was produced, in which she stated that she was at no time vulnerable, and it would be wrong to suggest that Dr K had taken advantage of her. Nor were difficulties in her personal relationship with Mr S related to what occurred with Dr K.
19.4. The professional relationship had been of short duration.
19.5. That said, Dr K accepted he had committed an error of judgment and fully accepted responsibility for his behaviour; he provided an apology to the Tribunal, the complainant and to his family for what had happened.
19.6. The conduct was out of character; nine references were placed before the
Tribunal.
19.7. Cancellation or suspension was inappropriate; Counsel referred to a number of
5 PCC v O – 47/Nur05/25P; DP v Jury – 272/Psy/09/130D; DP v Mete – 191/Nur08/104D; PCC v Patel –
59/Med06/36D; PCC v Gulliver – 61/Nur06/35P; PCC v Dr D – 220/Med08/102P; DP v O – 104/Psy07/58D.
cases dealing with inappropriate sexual relationships, in support of the proposition that more serious cases justified cancellation and suspension.6
19.8. It was submitted that the case which was probably of most assistance to the Tribunal was that of Allen,7 where an occupational therapist had embarked upon a personal relationship with a patient, to whom she was providing OT services. The personal relationship was not a sexualised one, but involved inappropriate and regular contact (on occasions at night) commonly outside of regular hours by way of email and MSN. The penalty imposed was rehabilitative in nature, including conditions to assist her in identifying and maintaining professional boundaries, and payment of costs. There was no fine.
19.9. It was submitted as to outcomes:
19.9.1. on the basis of a psychiatrist’s report placed before the Tribunal from Dr P Cowley, a condition relating to a one to one relationship with a mentor would be appropriate.
19.9.2. Dr K was in a position to pay a fine, with evidence of his financial position being placed before the Tribunal.
19.9.3. that a censure was a salutary and significant black mark, given a hitherto excellent professional reputation.
19.9.4. on costs, that Dr K was entitled to credit for reaching agreement over the facts, and that it was of importance to the Tribunal’s processes that health professionals be able to be heard and fully so, with respect to these matters, without being unduly penalised. Again Dr K’s financial
circumstances would be relevant.
6 Patel – 59/Med06/36D; DP v Gray – MPDT182/01/72D; Macdonald v PCC, High Court Auckland, CIV-
2009-404-1516, Lang J, 10 July 2009; Dr C, MPDT342/02/95C, 1 October 2010 and B v B – High Court
Auckland, HC4/92, 6 April 1993, Blanchard J.
7 HPDT27/0T05/14D.
Penalty Principles:
21.1. Protecting the public – this object is reinforced by section 3 of the HPCA Act;
21.2. to maintain professional standards – this object is emphasised in Taylor v General Medical Council [1990] 2 All ER 263; Ziderman v General Dental Council [1976] 2 All ER 344 and Dentice v The Valuers Registration Board [1992] 1 NZLR 720;
21.3. to punish the practitioner in question, as referred to in Dentice v The Valuers
Registration Board and Patel v Complaints Assessment Committee (CIV-2007-
404-1818, 13 August 2007, Lang J);
21.4. where appropriate, to rehabilitate the practitioner, as referred to in J v Director of Proceedings (CIV-2006-404-2188, 17 October 2006, Baragwanath J), and Patel (supra).
Aggravating and mitigating factors:
24. The Tribunal considered that the following were aggravating factors:
24.1. Vulnerability of Ms L: as already discussed, Ms L was vulnerable at the time of the professional consultations with Dr K. She was upset at the circumstances which led to the consultations; she was suffering recurring thrush, and was living with her parents in an unsettled family situation. This
was the genesis of the relationship. In the Tribunal’s view the patient was in a vulnerable state.
24.2. Thereafter, there are conflicting statements from the complainant Mr S on the one hand and Ms L on the other, which the Tribunal is not in a position to resolve. What can be said is that there was indeed an intense professional relationship between doctor and patient, where Dr K was in a position of power, and Ms L was not.
24.3. A second aggravating factor relates to the issue of harm. Ms L and her partner separated between late June 2008 and early July 2008, but then reconciled; then Mr S discovered the text messages of a sexual nature from Dr K, stored in Ms L’s phone. After Mr S discovered those text messages, the parties separated again. Although there is not a consensus between Ms L and Mr S as to why the parties separated again, the situation described above cannot have helped them; and created, at the least, potential for harm.
24.4. A third factor relates to the type of work which Dr K carries out, which requires him regularly to be consulted by vulnerable women. It is absolutely essential that appropriate boundaries be maintained at all times by all practitioners, and this obligation must obviously apply when dealing with vulnerable patients. Of further concern is the advice of Dr Cowley to the effect that Dr K has a “... small degree of personal vulnerability”, which could make him more susceptible to the problems of the kind which arose in the present case.
24.5. A fourth factor relates to insight; this has been touched on earlier when it was noted that Dr K informed a colleague on 23 May 2008 about the emotional relationship, but did not end it at that point, notwithstanding his apparent awareness that it was inappropriate. One of Dr K’s referees referred to an
earlier occasion, in 2007, when Dr K had received a letter from a patient, inviting him to meet up with the patient outside of work; Dr K referred the matter to his manager, and it was agreed that she, the manager, would inform the patient that this was inappropriate. Notwithstanding that earlier experience, which recognised that personal contact with a former patient can indeed be problematic, no such insight was demonstrated in the present circumstances.
24.6. The final aggravating factor relates to the way in which the inappropriate emotional relationship developed:
24.6.1. The communications were somewhat secretive in nature, and obviously intended not to be seen by Mr S.
24.6.2. Many of the texts were sent or telephone conversations took place outside working hours.
24.6.3. There was a significant frequency in the communications.
24.6.4. The communications occurred over a period of months. This was far more than a “one off” lapse of judgment.
24.6.5. And on content, some of the communications were of a sexual nature.
25. There are the following mitigating factors, in the Tribunal’s view:
25.1. There have been no previous complaints or adverse findings.
25.2. There was a guilty plea at the hearing.
25.3. Dr K voluntarily consulted a psychologist when this matter came to light, and consultations apparently continued to the end of 2009.
25.4. He has, now, demonstrated sufficient insight as to obtain professional assistance. This is particularly evident from the report of Dr Cowley, who states Dr K shows a good understanding of the principles of the Medical Council’s policy; that he has learned and grown considerably in the 2½ years
whilst this matter was being investigated; and that he does have a good capacity for recognising warning signs.
25.5. Good references were supplied, indicating that Dr K is well thought of by a range of colleagues, to whom he had been open about the present circumstances.
25.6. A significant factor is the support that he has from his wife, notwithstanding the difficulties that have arisen.
25.7. He is vocationally registered as a GP, and thereby subject to recertification
(which would not apply if Dr K was on the general register only).
Discussion:
26. The situation revealed by the evidence in the present case was one that was out of control. Dr K should have exercised judgment and demonstrated insight, but he did not. There was an unhealthy and unacceptable interaction with a recent former patient in an underhand way. He was dealing with a relatively young vulnerable woman. This must not be repeated.
27. Dr Cowley in his report referred to two previous situations where, in one instance, a young woman presented herself for an examination when there was clearly no justifiable clinical reason; and the second episode was where a young woman, who Dr K had treated, wrote a letter which resulted in his manager becoming involved (as discussed above). The concern which the Tribunal has is that a patient would think it was possible or appropriate to act in this way. One conclusion is that Dr K had not made it sufficiently clear to patients such as Ms L that his professional role did not allow him to engage with patients on a personal level, following treatment.
28. That the situation which the Tribunal was required to consider in the present case occurred, is very serious; and the Tribunal needs to make it crystal clear that such inappropriate interactions are not appropriate for a health professional.
29. Having regard to the circumstances regarding the inappropriate relationship with Ms L, The Tribunal seriously considered suspension, but in the end determined that it would adopt a rehabilitative approach, involving conditions, censure, a fine, and the imposition of costs.
30. The conditions are fully set out below, and will involve mentoring and counselling.
31. As regards censure, the Tribunal must express its strong disapproval for the conduct which it was required to consider.
32. In considering a fine and the issue of costs, the Tribunal considered:
32.1. A strong message needed to be sent to Dr K, and to other members of the profession, that firm penalties will be imposed where professional boundaries are crossed with patients. The maximum fine which can be imposed is
$30,000.00; given the range of other outcomes which the Tribunal considers it appropriate to impose in the present case, 50% of the maximum available to the Tribunal is appropriate. A fine of $15,000.00 is accordingly ordered.
32.2. As to costs, the usual starting point is 50%; the PCC submitted that having regard to all factors, including the guilty plea, the appropriate level is 40%. No contrary submission was made for Dr K. The Tribunal agrees that this is the correct amount. The Tribunal recognises that the quantum of the PCC costs were significant, and determined that the approach was to order a percentage of the total involved at 40% of total costs ($127,800.00) (not taking into account GST), to be apportioned at $20,000.00 in respect of the Tribunal’s costs, and
$30,000.00 in respect of the PCC’s costs.
Application for non-publication of name:
33. Counsel for Dr K made an application for permanent non-publication of name. In summary, Counsel submitted:
33.1. Dr K had worked as a GP since 2004.
33.2. He had served his community well as an active member of various Boards and other bodies associated with medicine and health.
33.3. He had particular business interests which could be affected by publication of name.
33.4. The nature of the work which he carries out could lead to unfair and unfounded criticism, if known that a charge of professional misconduct on the grounds discussed above, had been established; he was susceptible in short to damage beyond that which would ordinarily be the case (as per R v Police, AP8/95, High Court Palmerston North, Greig J, 9 March 1995, page 6).
33.5. There was another doctor with the same surname.
33.6. There would be family consequences, and in particular to Dr K’s wife; a report from a doctor was provided, outlining her health issues.
33.7. It was also stated relatives of Ms L were unaware of the circumstances, and that factor should also be taken into account.
34. Counsel for the PCC referred to the usual authorities relating to non-publication following a charge being established, to the effect it would be more difficult to satisfy the Tribunal that publication of name was appropriate, once the evidence was before the Tribunal, and the charge had been determined. Otherwise, the PCC took a neutral position.
Discussion:
35. The Tribunal recognises the force of the factors which point to publication of name, including:
35.1. The principles of open justice.
35.2. The right of the public, and especially patients, to be aware of the circumstances relating to a case such as the present.
35.3. The fact that other practitioners may be impugned.
36. Factors pointing towards non-publication of name are:
36.1. The significant health issues affecting Dr K’s wife. The Tribunal’s evaluation of the information it has been given in that regard indicates the issues she faces are more than the usual stress or distress which any family member inevitably has to suffer when publication of name occurs in respect of a health professional. The information provided in this case suggests circumstances significantly different from usual distress or stress. This factor is one which is entitled to significant weight when evaluating the publication of name issue.
36.2. The Tribunal accepts that there is a possibility, but not a certainty, of impact on the local services which Dr K provides. That is, publication of name resulting in a compromise of Dr K’s ability to provide those services, would not be in the public interest.
36.3. The Tribunal accepts that publication of name would cause some prejudice to Dr K’s business interests. However, that is often the case when a disciplinary charge is established and publicity occurs. It would not normally be a factor entitled to particular weight, although, the Tribunal recognises the force of the dicta of Blanchard J in B v B8 when he pointed out that when a rehabilitative approach is being taken, publicity can be counterproductive. In this case, reputational harm is a factor to be considered, and is entitled to some weight, but is not determinative.
37. Weighing up the various factors referred to above, the totality of the factors identified above which support non-publication of name – particularly health issues relating to Dr K’s wife – do suggest that a permanent order should be made.
38. Against that, the Tribunal is mindful of the right of patients to be informed of disciplinary findings against a doctor whom they consult. The Tribunal recognises
however, that Dr K appears to have moved on, and is motivated to build on the steps that he has taken since this matter came to notice; that the mentoring and counselling conditions which the Tribunal is imposing are important protective elements; and further that Dr K has the support of his wife.
39. Taking all factors into account, the Tribunal is satisfied that it is appropriate to make a permanent order of non-publication of Dr K’s name, practice locations and any other identifying details, which for the avoidance of doubt includes the particular type of medical work in which he specialises. This order is subject to a condition that a full copy of the Tribunal’s decision is to be sent to the Chief Executives and the Chief Medical Advisor of two relevant DHBs, on the basis that those persons must comply with the Tribunal’s non-publication orders; when the decision is forwarded to them, they will be informed of the identity of Dr K.
Conclusions:
40. The charge of professional misconduct is established.
41. The following conditions of practice shall apply:
41.1. Mentoring: Dr K is to have a mentor. Mentoring is to focus on boundary issues. The mentor shall be a person approved by the Medical Council. Dr K is to meet with the mentor monthly for the first six months of the mentoring period and shall meet with the mentor for at least each two months thereafter. The total period of the mentoring is three years. The mentor shall report to the Medical Council each six months. Dr K is to meet the costs of this condition.
41.2. Counselling: there shall be counselling with a psychologist or psychiatrist monthly for at least 12 months to manage the personal vulnerability issues identified by Dr Cowley. Confirmation of the identity of the counsellor and
verification of the counselling sessions is to be given to the Medical Council
8 HC 4/92, 6 April 1993,
each six months. A copy of Dr Cowley’s report is to be provided to the Medical Council for the purposes of this condition. Dr K shall meet the costs of this condition.
41.3. Censure: the Tribunal must express its strong disapproval for the conduct which it has had to consider.
41.4. Fine: Dr K shall pay a fine of $15,000.00.
41.5. Costs: Dr K is ordered to pay:
41.5.1. In respect of the costs of the Tribunal, $20,000.00.
41.5.2. In respect of the costs of the PCC, $30,000.00.
41.6. There shall be a permanent order of non-publication of Dr K’s name, practice locations and any other identifying factors including practice locations and any other identifying details, which for the avoidance of doubt includes the particular type of medical work in which he specialises. This order is subject to a condition that a full copy of the Tribunal’s decision is to be sent to the Chief Executives and the Chief Medical Advisor of two relevant DHBs, on the basis that those persons must comply with the Tribunal’s non-publication orders; when the decision is forwarded to them, they will be informed of the identity of Dr K.
42. The Tribunal directs that a copy of this decision, and a summary of it be published on the Tribunal’s website. The Tribunal further directs that a notice stating the effect of its decision is to be placed in the New Zealand Medical Journal.
DATED at Wellington this 17th day of January 2011
................................................................ B A Corkill QC
Chairperson
Health Practitioners Disciplinary Tribunal
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