Charge

The Tribunal considered four charges of professional misconduct laid by a Professional Conduct Committee against Ms Esme Schlotjes, occupational therapist of Raumati (the Occupational Therapist).

The charges alleged the Occupational Therapist:

1. Failed to respect the relationship of trust implicit in the professional occupational therapy relationship; exploited the therapy relationship; and acted where there was a conflict of interest without first satisfactorily addressing the conflict.
2. Agreed to hold an alternative power of attorney for the patient without engaging in appropriate discussion, consultation and reflection.
3. Provided false or misleading information to the supervisor.
4. Failed to disclose or seek advise when she became aware she may receive a bequest under the Patient's will.

Background

The Patient was an elderly man with significant disablilities and was a vulnerable patient.  He had been treated by the Occupational Therapist from October 2004 to November 2005.  In addition she provided him some urgent occupational therapy services in February 2006. 

In August/September 2006 the Occupational Therapist agreed to be appointed as an alternative power of attorney in relation to both property matters and personal care and welfare of the Patient.  She was advised she "would be well rewarded for stepping into this role".  The necessary documents were signed and dated 21 November 2006 and 18 September 2006. The Tribunal considered that at the time of the execution of the powers of attorney, the Occupational Therapist was still an employee of the DHB which was still providing services to the Patient.

She was told $30,000 would be left to her in the Patient's will.  At no time did she disclose to the professional colleagues, nor did she seek professional supervision or advice, abou the possibility of a bequest.  The Tribunal found that at the time of being requested to accept the appointment as an alternative attorney she was aware ethically challenging issues were involved.

When the Patient died he left her a bequest of $5,000.  The Occupational Therapist brought proceedings in the District Court to enforce what she claimed was a testmentary promise of $30,000.

Finding

The Tribunal found all four charges established and the conduct in charges 1,2 and 4 separately amounted to malpractice.  The Tribunal considered the conduct in charge 3 did not on its own amount to malpractice but when considered with the other 3 charges was an element which should be taken into accoutn in the overall finding of misconduct and in relation to the penalty imposed.

The Tribunal considered the Occupational Therapist did not, and still did not at the time of the hearing:

• acknowledge the ethical dilemmas involved in her actions;
• appreciate the inadequacies of the advice she took;
• accept it was inappropriate for her to receive benefits from, and then bring court proceedings against the estate of the patient.

Penalty

The Tribunal censured and fined the Occupational Therapist $5,000.  It ordered conditions be imposed on her practice for a period of 18 months.  She was further ordered to pay $20,000 in costs.

The Tribunal directed the decision and a summary be published.