Charge

Between 2-6 and 9-11 November 2020, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge laid by a Professional Conduct Committee (PCC) against Dr XY, registered medical practitioner (the Doctor) of [location].

The charge as summarised below alleged that that between 1998 and 2006, when the Doctor was engaged as a Police Medical Officer to conduct Police Recruit Medical Screening (PRM), he acted in breach of his ethical obligations and accepted standards of practice:

1. The Doctor undertook the following intimate physical examinations in circumstances where these were inappropriate and unnecessary for the purpose of the consultation, and inadequately communicated the purpose of the examinations to each patient;
   1. Rectal examinations of 2 patients;
   2. A rectal examination of a patient, during which contact with the vaginal area occurred;
   3. Testicular examinations of 2 patients;
2. The Doctor undertook intimate visual examinations of the perineum area of 7 patients in circumstances where these were inappropriate and unnecessary for the purpose of the consultation, and inadequately communicated the purpose of the examination to each patient;
3. The Doctor undertook intimate visual examinations by requiring 7 patients to bend over in their underwear, while he stood behind them, in circumstances where this was inappropriate, and inadequately communicated the purpose of the examination to each patient;

The alleged conduct amounted to professional misconduct in that, either separately or cumulatively, it amounted to malpractice or negligence and/or brought or would likely bring discredit to the profession, under section 100(1)(a) and 100(1)(b) of the Health Practitioners Competence Assurance Act.

The full charge can be found attached as a Schedule to the published decision.

Background

In 1985, the Doctor was appointed as a Police Medical Officer (PMO) by the New Zealand Police. The role included undertaking PRM examinations. The Practitioner subsequently ceased being a PMO in 1993 but continued to regularly undertake these PRMs for the Police. In June 2017, the Police received a complaint from Ms S, a Police employee, about her PRM examination in 2002. Ms S alleged that the Practitioner acted inappropriately during her PRM.

A Detective and two other police officers investigated the complaint. Due to the information provided by Ms S, they took a “Mass Allegation Investigation” (MAI) approach. This approach is followed when the Police suspect that there may be other potential victims who have not yet come forward.

As part of this approach, they undertook “cold-calling” of Police recruits who had undertaken a PRM with the Practitioner. As a result of the Police contact with current and ex-employees, the Police identified several people who disclosed potential concerns about their PRM with the Practitioner. People were then invited to be interviewed or to give a formal statement.

A search warrant was executed on the Doctor’s practice seeking medical records relating to Ms S and others who had identified concerns about their PRM examination. Until the Police contacted the Practitioner about this matter in 2017, he was unaware that any recruits had concerns about what had happened during these examinations. As a result of this investigation, the PCC laid the charge of professional misconduct.

The Doctor denied any inappropriate conduct or impropriety. He says that while he did undertake intimate examinations on police recruits, this was done in accordance with what he understood to be expected by the Police and was acceptable practice at the time. He did not accept that he would have undertaken any examination, particularly a haemorrhoid or rectal examination, without first providing a proper explanation to the patient.

Finding

Taken as a whole, in respect of the all three Particulars where sub-particulars had separately been established (particular 1: digital rectal examinations, particular 2: visual perianal examinations, where there was a request to bear down, and particular 3: the flexibility test where the examination was conducted with the patients in their G-string underwear), the Tribunal found that these matters cumulatively amounted to malpractice and negligence and  had brought discredit to the medical profession.

Viewed objectively, the Tribunal was satisfied that the Doctor’s conduct had departed from the expected standards of a reasonably competent registered medical practitioner operating in his scope of practice.

The Tribunal was not satisfied that the gravity of the Doctor’s conduct warranted disciplinary sanction for the purposes of protection of the public and monitoring professional standards. The Tribunal was of the view that the Doctor acted in good faith. To impose a penalty on the Doctor would have been a disproportionate response to the seriousness of the conduct in question. No Penalty was applied.

Appeal

In June 2022, the Doctor successfully appealed against the Tribunal's finding of professional misconduct and the refusal to grant permanent name suppression. The PCC unsuccessfully cross-appealed the Tribunals decision not to impose a disciplinary sanction on the Doctor.  XY v A Professional Conduct Committee [2022] NZHC 1498.

Finding

Gendall J found that the Tribunal erred in their approach to applying the two-stage test for establishing professional misconduct. It was also found that inappropriate weight and consideration was given to the evidence of expert witnesses. There was insufficient evidence to support a finding of professional misconduct, which is to be on the balance of probabilities. The charges were dismissed in their entirety and order for permanent name suppression was for instated for the Doctor, the Police recruit witnesses, and any identifying information.

Costs

Costs reserved.