A panel of the Health Practitioner’s Disciplinary Tribunal (the Tribunal) convened on 3 and 4 October 2023 to hear a charge laid by a Professional Conduct Committee (PCC) of the Medical Council of New Zealand (MCNZ) against Dr [O]registered medical practitioner (the Doctor).
Charge:
In summary, the charge alleges that the Doctor:
Over an approximately five-year period, used his position or expertise in connection with a medical student (the complainant) with whom he was in a close personal relationship and/or was a professional mentor in that he:
- Prescribed medication to the student with a risk of addiction or misuse.
- At times supplied the student with benzodiazepine and/or sleep medication.
- Misrepresented Cialis as a sleep medication for the purpose of engaging or attempting to engage in sexual activity.
- Covertly watched and/or took photographs of the student in the shower.
- Covertly made an intimate visual recording of the student for which he was charged, pleaded guilty and was discharged without conviction.
The PCC charged that the above conduct amounted to professional misconduct under sections 100(1)(a) and or 100 (1)(b) of the Health Practitioners Competence Assurance Act (HPCA).
The charge is set out in full at the end of the Tribunal’s decision 1402/Med22/552P.
The Doctor pleaded guilty to the charge.
Background:
The Doctor first met the complainant at a presentation he was giving to science students. The complainant was a 20-year-old student.
Following the initial meeting the Doctor invited the complainant to lunch. During the lunch the Doctor offered to help the complainant with his application to medical school. The complainant regarded the Doctor as a professional mentor who would help him get into medical school.
Once the complainant finished his Bachelor of Science degree, he returned to his home country. The Doctor continued to help by editing the complainant’s essay applications, coaching him on the interview process and helping him write his personal statement. He also provided a letter of support that the complainant sent in with his application.
The following year the Doctor and complainant started taking trips together. To help with the complainant’s jet lag, the Doctor gave him triazolam, melatonin and benzodiazepine. He also prescribed Cialis on one occasion misrepresenting it as a jetlag medication with the hope that they would have more exciting sex. On another occasion he prescribed Tramadol for pain the complainant was suffering. The Doctor sometimes paid for the complainant’s travel and accommodation.
On one trip, the Doctor used a portable security camera to watch the complainant in the shower and to take naked photographs of him without his knowledge.
On another occasion, the Doctor used a portable camera hidden in a speaker in a bathroom at his home to film the complainant masturbating in the shower, without his knowledge. The complainant found the video on the practitioner’s phone and complained to the Police. The Doctor was charged with making an intimate visual recording. The Doctor pleaded guilty to the charge and was discharged without conviction. He was granted permanent name suppression.
Jurisdictional Point:
During the hearing a question arose as to whether the Tribunal had jurisdiction to consider conduct that occurred overseas. Both parties to the charge referred to the case of [O] 839/Med16/352P. The Chair in that case reasoned that although legislation does not generally have extra-territorial effect, the Tribunal’s jurisdiction is tied to the hold of a New Zealand registration. If there is no way of addressing misconduct done by a New Zealand registered health practitioner overseas, the principal purposes of the Act, ie, the protection of the New Zealand public and the setting of professional standards, would be undermined.
The Tribunal acknowledged that the discussion about extra-territorial application of the Act in [0] has not been considered by the higher courts directly. However, the it was persuaded by the Chair’s reasoning in [O] and considered the Tribunal did have jurisdiction.
Findings:
The Tribunal found the charge established and each of the particulars amounted to professional misconduct on a cumulative basis apart from particulars 5(a), 7 and 8 where these particulars were established both on a separate and cumulative basis. The conduct as set out in the charge was serious enough to warrant disciplinary sanction.
Penalty:
The Tribunal imposed:
Censure
Conditions under s.101(c) of the Act
Fine of $10,000
Payment of costs of $70,076.91 amounting to 30% of the total costs of the Tribunal and the PCC.
The Tribunal directed publication of the full decision and a summary subject to the suppression orders imposed.
The PCC appealed to the High Court against the penalty orders in that the Tribunal erred in not suspending the Doctor or imposing all conditions requested by the PCC.