At a hearing on 5 - 7 March 2014, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge of professional misconduct laid by the Director of Proceedings of the Health and Disability Commissioner's office against Dr H, a medical practitionre (the Doctor).
The Charge alleged that:
- The Doctor failed to set and/or maintain appropriate professional boundaries in that he:
1.1 sent to the Patient's cell phone number(s), numerous text messages of a personal and/or sexual nature, and/or
1.2 made numerous telephone calls to the Patient's residential telephone number(s).
- The Doctor breached sexual boundaries in the doctor/patient relationship through sexual impropriety and/or sexual transgression and/or sexual violation in that he:
2.1 made sexualised comments to the Patient; and/or
2.2 conversed (including by text message(s)) with the Patient regarding his sexual preferences and/or sexual fantasies; and /or
2.3 propositioned the Patient; and/or
2.4 discussed methods of masturbation with the Patient by text message(s) including requesting information from the Patient about whether she had finished masturbating, while in communication with the Patient; and/or
2.5 masturbated, or suggested to the Patient that he was masturbating, while in communication with the Patient; and/or
2.6 engaged in oral sex with the Patient; and/or
2.7 engaged in sexual intercourse with the Patient.
The charge also made it clear that Particular 1 did not depend on proving the Patient was the intended recipient of certain text messages and/or telephone calls that formed the basis for this Particular.
The Doctor defended the charge and denied that the recipient of the text messages and telephone calls was his patient. The Patient who initially had made the complaint about the Doctor's conduct and then withdrew it, appeared under subpoena and gave oral evidence at the hearing that contradicted her complaint.
The Tribunal did not consider that the Patient's oral evidence was reliable. It was satisfied that the complaint as originally made by her to the Health and Disability Commissioner was in its essentials correct and her oral evidence was not accepted by the Tribunal.
The Tribunal found all sub particulars of Particular 2 were established except for sub particular 2.7. The Tribunal did not accept that the substance of the texts provided by the Director of Proceedings established that sexual intercourse with the Patient occurred.
Having regard to its findings in Particular 1, the Tribunal found Particular 2 to be made out.
In the alternative, had the Tribunal not been satisfied that the text messages and/or telephone calls were intended for the Patient but for the Patient's friend, as alleged by the Doctor, the Tribunal would have accepted the expert witness evidence that the use of the Patient's cell phone and or landline numbers to communicate with a third party with whom the Doctor was having a sexual relationship would in the circumstances of this case, have involved a serious breach of professional boundaries.
The Tribunal concluded that cumulatively the two established Particulars amounted to very serious malpractice and the bringing of discredit to the medical profession.
The Tribunal ordered that:
- The Doctor's registration be cancelled with effect from the date which was 15 days after the date the decision was served on the Doctor.
- For the period until the order of cancellation took effect, the Doctor was required to have a chaperone present for any female consultations; a notice for this effect to be place in the reception area. These arrangements were to be approved by the Medical Council of New Zealand.
- The Doctor was censured.
- The Doctor pay total costs of $66,440.00.
The Tribunal directed that its decision and a summary be published.
The Doctor sought a stay of the Tribunal's decision and has appealed the decision to the High Court.
The High Court allowed the appeal against the penalty order to the extent it quashed the order for cancellation of registration and substituted an order for a two year suspension from practice commencing 20 working days from the date of the HC decision. (Singh v Director of Proceedings (High Court Auckland CIV-2014-404-1110, Ellis J, 17 November 2014)).