Charge

On 29 November to 1 December 2022, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge laid by a Professional Conduct Committee (PCC) under the Health Practitioners Competence Assurance Act 2003 (HPCA Act) against Mr Justin Marc Scott (the Physiotherapist), registered physiotherapist of Auckland.  

The charge is summarised below and alleges that the Physiotherapist:

1. Provided physiotherapy treatment to Ms G in a manner that was inappropriate and unprofessional by:

1.  failing to explain her diagnosis and proposed treatment,
2. failing to obtain and/or document her informed consent to treatment,
3. failing to adequately document his treatment,
4. carried out treatment without clinical justification,
5. touched her vagina,
6. failed to maintain her dignity and privacy,
7. obtained her private cell phone number in breach of her privacy,
8. contacted her when it was not necessary for the provision of physiotherapy services.  

2. Provided physiotherapy treatment to Ms E in a manner that was inappropriate by:

1. obtaining her private cell phone number, and
2. sending her messages unrelated to the provision of physiotherapy services,
3. Sending messages from his personal phone in breach of his contract.

The conduct alleged above amounts to professional misconduct in that, either separately or cumulatively, it amounts to malpractice or negligence in relation to the Physiotherapist’s scope of practice pursuant to section 100(1)(a) of the Act and/or it has brought or is likely to bring discredit to the profession, pursuant to section 100(1)(b) of the Act.

A copy of the full charge can be found at Appendix A to the decision.

The Physiotherapist admitted the charge and the hearing proceeded by way of an Agreed Summary of Facts.  The Physiotherapist elected not to give evidence.

Background

The Physiotherapist first registered with the Physiotherapy Board on 4 January 2012.  Between 28 May and 5 July 2019, the Physiotherapist treated Ms [G], then a teenager, on 11 occasions. Following a complaint by Ms G’s mother, the Physiotherapist was suspended from the practice where he worked while the complaint was investigated.

The Physiotherapist’s contract was reinstated in August 2019 with conditions relating to the way in which he was to communicate with his patients.

The Physiotherapist also treated Ms E between 26 November 2018 and 24 January 2020.  Ms E was also a teenager.

In February 2020 Ms E complained to the Practice about inappropriate communications from the Physiotherapist.  The Physiotherapist was again suspended and has not worked at the Practice since.

Finding

The Tribunal found both particulars fully established and warranted disciplinary sanction.

The Tribunal found that the Physiotherapist’s failure to obtain informed consent to the massage treatment was a breach of the standards set by the Physiotherapy Board and a breach of Ms [G]’s rights. The Tribunal also found that the Physiotherapist’s documentation of his assessment and treatment of Ms [G] fell well below the standards expected of a Physiotherapist. The poor documentation of one episode of treatment would not usually warrant a disciplinary sanction but when considered with the other particulars, it amounted to professional misconduct.

The provision of treatment without clinical justification by the Physiotherapist raises questions about the practitioner’s competence and leaves a patient open to financial exploitation, paying for treatment that is not required; sexual exploitation, allowing touching of the body that is not required for the patient’s treatment, rehabilitation or recovery. The Tribunal therefore found the provision of massage treatment was not clinically justified, was unethical and amounted to malpractice and negligence. It is also conduct likely to bring discredit to the profession. Had that been the only complaint here, it may not have reached the disciplinary threshold, but when considered cumulatively with other particulars, it amounted to professional misconduct.

The Tribunal found that conduct relating to the inappropriate touching was unethical, immoral and amounted to malpractice likely to bring discredit to the profession. The conduct being sufficiently serious to warrant a disciplinary sanction.

Penalty

The Tribunal ordered:

• Censure
• 9-month suspension
• Conditions on return to practice
• Contribution to 30% of costs of the PCC and Tribunal, totalling $45,145.95.

The Tribunal directed publication of the decision and a summary.