Charge

On 24 June 2020 the Health Practitioners Disciplinary Tribunal (The Tribunal) considered a charge of professional misconduct laid by a Professional Conduct Committee against Mr O, registered physiotherapist (the Physiotherapist).

The charge was laid under sections 100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (HPCA Act). The charge alleged that:

1. Between 1 November 2015 to 31 October 2017 in respect of 2,735 treatments to patients, and in breach of his legal and professional obligations the Physiotherapist:
   1. Failed to keep clinical records of the treatment provided, and/or
   2. Invoiced the ACC for services when he had not complied with the contractual requirement for ACC service providers to keep clinical records that met the standards set by the Physiotherapy Board to demonstrate all treatments are necessary, appropriate, timely and of the required quality.

And/or

2. On or around 11 February 2016 (particular 2) and/or on or around 23 March 2017 (particular 3) when the Physiotherapist completed his Annual Practising Certificate (APC) renewal he:
   1. Failed to comply with his obligation to inform the Board about his mental health issues, and/or
   2. Completed a declaration which he knew, or ought to have known, was false and/or incomplete because he knew, or ought to have known, that he was suffering from a mental health condition.

Background

The Physiotherapist holds a Bachelor of Health Science from AUT and was registered with the Physiotherapy Board. At the time of the charge, the Physiotherapist was a director and co-owner of a physiotherapy business.

Since these events the Physiotherapist has demonstrated his ability to seek medical support for his health condition and has made substantial efforts towards rehabilitation.  The Physiotherapist has undertaken a supervision agreement put in place by the Physiotherapy Board since September 2019 and has complied with interim conditions on his practice since then.  No issues arising out of his practice have been identified.   The Physiotherapist’s health condition is stable, and he is fit to practise.

Finding

The hearing proceeded via audio-visual link, based on an agreed summary of facts. The Physiotherapist admitted the charge and that his conduct amounted to professional misconduct.

The Tribunal was satisfied that the charge was established as negligence and malpractice and bringing discredit to the profession.  Particular 1 on its own warranted disciplinary sanction. The sheer volume of missing records was a significant departure from professional standards.  Patient records are a vital source of communication between health professionals providing care to the patient, giving a documented history of a patient’s condition.

The Tribunal acknowledged that there was no evidence to suggest that the Physiotherapist made claims to ACC for patients that were not actually treated but that he had failed to keep records to support those claims which was required by the ACC.

Particulars 2 and 3 when taken together were sufficiently serious to warrant disciplinary sanction when considered together with particular 1.  The Tribunal accepted expert evidence that the Physiotherapist’s health issues did impact upon his work and at least in part contributed to his failures to meet his obligations.

Penalty

The Tribunal:

• Censured the Physiotherapist;
• Ordered a condition on the Physiotherapist’s practice within 12 months from the date of the decision;
• Ordered the Physiotherapist pay of fine of $5,000.00;
• Ordered the Physiotherapist pay $20,000.00 amounting to approximately 35% of the costs of the PCC and the Tribunal.

The Tribunal recommended that the Physiotherapy Board;

• Review its supervision conditions on the Physiotherapist’s practice within three months of the decision;

• Provide clearer guidance to physiotherapists on what is expected of them when completing the APC declaration form when a health condition is very likely to have the potential to affect a practitioner’s fitness to practise.  It is important for the health and wellbeing of any practitioner in the Physiotherapist’s position to be able to freely inform the Board of any relevant health condition and to encourage practitioners to be more forthcoming about their current state of health.

The Tribunal directed the decision and a summary be published.