MINISTRY OF HEALTH v PITT [2021] NZHC 2357

MINISTRY OF HEALTH v PITT [2021] NZHC 2357 [9 September 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2021-485-30[2021] NZHC 2357BETWEEN MINISTRY OF HEALTHAppellantAND GEOFFREY RONALD PITTRespondentHearing: 25 August 2021 (via VMR); further submissions received27 August 2021Counsel: H M L Farquhar for AppellantA B Darroch for RespondentJudgment: 9 September 2021JUDGMENT OF MALLON JIntroduction[1] Geoffrey Pitt faced three charges under the Health Practitioners CompetenceAssurance Act 2003 (the Act). One charge alleged he claimed or suggested hepractises as an osteopath when he did not hold a practising certificate (an offence unders 7(2) of the Act). Two charges alleged he performed a restricted treatment when hewas not a health practitioner permitted to perform that activity (an offence under s 9(4)of the Act). He was acquitted of all three charges in a District Court Judge-alone trialbefore Judge Sygrove.1[2] The Ministry of Health appeals that decision in relation to the charge ofclaiming that he practised as an osteopath. The appeal required leave which I haveearlier granted.2 Leave was granted on the question of whether the Judge erred by1 Ministry of Health v Pitt [2021] NZDC 8189.2 Criminal Procedure Act 2011, s 296; Ministry of Health v Pitt [2021] NZHC 1789.approaching the issue of whether Mr Pitt could only be guilty of the charge if he heldhimself out as a registered osteopath. It is accepted by Mr Pitt that the offence doesnot require that he held himself out to be a registered osteopath. He contends that theJudge correctly set out the requirements of the offence and reached a conclusion opento him on the evidence.The Act[3] The principal purpose of the Act is to protect the health and safety of membersof the public by providing mechanisms to ensure that health practitioners arecompetent and fit to practise their professions.3 Osteopaths are health practitionersregulated by the Act.4[4] Section 7 of the Act provides:7 Unqualified person must not claim to be health practitioner(1) A person may only use names, words, titles, initials, abbreviations, ordescriptions stating or implying that the person is a health practitionerof a particular kind if the person is registered, and is qualified to beregistered, as a health practitioner of that kind.(2) No person may claim to be practising a profession as a healthpractitioner of a particular kind or state or do anything that iscalculated to suggest that the person practises or is willing to practisea profession as a health practitioner of that kind unless the person—(a) is a health practitioner of that kind; and(b) holds a current practising certificate as a health practitioner ofthat kind.(5) Every person commits an offence punishable on conviction by a finenot exceeding $10,000 who contravenes this section.[5] Section 9 provides for the Governor-General, by Order in Council, to declarean activity that forms part of a health service to be a restricted activity. It is an offenceto contravene s 9(4) which provides:3 Section 3(1).4 Section 114(4).No person may perform, or state or imply that he or she is willing to performan activity that, by an Order in Council made under this section, is declared tobe a restricted activity unless the person is a health practitioner who ispermitted by his or her scope of practice to perform that activity.[6] High Velocity Low Amplitude (HVLA) manipulation to the necks of patientsis a restricted activity. Osteopaths are permitted to perform this activity.District Court trialBackground[7] Mr Pitt is 80 years old. He completed training in osteopathy in 1983. Hecompleted training in naturopathy at around the same time. Following thecommencement of the Act in 2003, he was a registered osteopath holding a practisingcertificate for a period. However, since 2005 he has not held a practising certificateto practise as an osteopath. He confirmed to the Osteopathic Council that year that hehad no intention of practising as an osteopath or of presenting himself as an osteopath.[8] Mr Pitt continued to run a naturopathic clinic. In November 2018 thecomplainant attended an appointment at his clinic to receive treatment for lungcongestion. The prosecution contended that during this appointment he made astatement that he was an osteopath as well as a naturopath and that he went on toperform a HVLA treatment on her at this and at a second appointment.[9] The issues at trial were:(a) what Mr Pitt had said to the complainant and whether that breacheds 7(2) of the Act; and(b) what treatments Mr Pitt had performed and whether they were arestricted activity under s 9(4) of the Act.The evidence[10] The complainant gave the following evidence. She had nagging chestcongestion, a cough and headaches following surgery for an infection in her lung. Shewas interested in trying a natural health treatment and made an appointment withMr Pitt on a recommendation from a work colleague. She understood from her workcolleague and from looking on his webpage that he was a naturopath.[11] The appointment was for 7 November 2018. The complainant told Mr Pitt shewas there because of her chest congestion. Mr Pitt spent some time obtaining thecomplainant's medical history (about half of the appointment was taken up with this).Mr Pitt told her that he thought her neck was not properly aligned and this was causinga lack of flow and in turn the congestion. He said her neck needed to be freed up tohelp with the flow. The complainant was quite surprised by this because she saw anosteopath on a regular basis (for preventative health measures) and was also a yogaand Pilates instructor and so had body awareness.[12] The complainant said that Mr Pitt went on to say:You're lucky that I'm [an] osteopath as well as a naturopath and I can helpyou with your neck if you have time, I can help you with that today.[13] She remembered this quite clearly – Mr Pitt used the words "osteopath" and"naturopath" and said he could help her "today" if she had time. She was not surprisedto hear that he was an osteopath as well as a naturopath because the two sometimescome together in holistic health.[14] He said he was going to do a neck adjustment (she did not recall the exactwords). He explained she had to lie down, he would support her head while movingit around to adjust her neck. She did not have any concerns because she had had thistreatment from her osteopath before. If she had realised Mr Pitt was not a registeredosteopath she would have been quite nervous about him doing this treatment.[15] The treatment started out the way she expected but some of the rotations werevery sharp. It was a more extreme version of the procedure she had previouslyexperienced. When she sat up after the treatment the pain was severe and she wasquite shocked by that. In the days following she had neck pain, a headache and nausea.[16] She had a follow up appointment a week after the first appointment. Shecontacted Mr Pitt by text message two days prior to the second appointment and askedhim if she should be coming in because she was in pain. Mr Pitt told her it was allpart of the process and she should attend her appointment. She attended the follow upappointment and allowed Mr Pitt to perform the same treatment. It again involved astrong and fast rotation of her head. She felt extreme pain between her shoulderblades. Mr Pitt said she should have weekly appointments as the pain would ease aswould her chest congestion. After this appointment she felt pain in her neck for weeks.She also had nausea and a headache for several days.[17] The complainant did a Google search and saw that Mr Pitt was not a registeredosteopath. She texted Mr Pitt and said that, as she required osteopathic treatment, shewould prefer to see a registered osteopath. She then made an appointment with theosteopath she had been seeing off and on over the years. After seeing her osteopathshe made a complaint to the Health and Disability Commission.[18] The complainant's memory of what Mr Pitt had said to her at the firstappointment was tested in cross-examination in the following exchanges:Q. So Mr Pitt says, he explained his background, that he had had training asan osteopath in the past, do you recall that?A. No, I don't.Q. And he said to you that he's had training and had worked for many yearsdoing osteopath work, but he was no longer doing that and he had an approachhe was going to do with you?A. I don't recall him saying that he no longer did that.Q. Okay, but you do recall him talking about his previous history as a –A. I recall him saying he had experience in osteopathy.Q. Osteopathy?A. Yeah.Q. And he talked about, he wanted to mobilize the area by relaxing the musclesin the upper back area and the neck?A. I can't remember.Q. And, well, I need to put it to you. He didn't tell you he was an osteopathdirectly did he?A. Yes, he did.Q. So your recollection is –A. It is. He very clearly said to me: "You're lucky, I'm an osteopath as well asa naturopath and I can treat you today."Q. Is it possible that you – because he will say it's possible he said: "I've gottime today. You're lucky I've got time today"?A. No.Q. You say that those words are definite?A. I'm very clear on that.[19] The complainant was also tested on her recollection of the treatment shereceived. It was put to her that her head was slowly rolled to the side. She disagreedwith this.[20] The prosecution also called evidence from the complainant's osteopath. Hegave evidence that he used HVLA treatment on her. He explained the techniqueinvolved with that treatment. After receiving this treatment the complainant's paineased relatively rapidly.[21] The prosecution also called expert evidence about the HVLA technique fromProfessor Duncan Reid. Based on the complainant's evidence of the treatment she hadreceived from Mr Pitt, it was Professor Reid's opinion that Mr Pitt had performed thistechnique on the complainant. In his opinion it was not simply mobilisation or analignment of her neck.[22] Mr Pitt elected to give evidence in his defence. He said he did not use theHVLA technique and had not used it since 2002. Rather, he relaxed the muscularskeletal system and then realigned the spine using mobilisation. His mobilisationprocedure was a derivative of the HVLA. His procedure involved a firm rotation butnot a flick with velocity as is the case with the HVLA technique.[23] Mr Pitt said that it became clear to him that the underlying cause of her chestcongestion was neck pressure and until this was addressed there was little point intalking about other naturopathic approaches that could help her situation. He wasasked about what he said to the complainant about being an osteopath in the followingexchange:Q. And I just want to – there's a comment that she's made that you told her:"You're lucky I'm an osteopath as well as a naturopath," can you just explainwhat was spoken between you about being an osteopath?A. It's not a term which I am familiar with using, however, that doesn't meanto say I didn't use it on that day because here she was in front of me and sheneeded some treatment, and if she wanted to use me, then it was lucky that Ihad an osteopathic background and was qualified as an osteopath and the wordI would've used would've been "qualified osteopath" not "registeredosteopath".Q. But did you tell her you were going to give her an osteopathic treatment?A. No, I was giving her naturopathic treatment.[24] In cross-examination the following exchange occurred:Q. Now, when [the complainant] came to you for treatment on 7th ofNovember 2018, you told her that her neck was out of alignment and that itneeded to be adjusted, didn't you?A. Correct.Q. And you then went on to tell her that she was lucky because you were anosteopath as well as a naturopath, didn't you?A. I would have said that – "lucky" is not a word I use, but I fully expect thatI did use it on that occasion because we were looking at a timeframe and I ama qualified osteopath but I'm not a registered osteopath and I doubt if Iwould've spelt that out. I would've simply said I'm a qualified osteopath.[25] The cross-examination on this topic continued:Q. And what you were saying when you wrote [to the Health and DisabilityCommission was] that: "I advised her that I was registered," what you weresaying was that you'd told [the complainant] that you were registered as anosteopath?A. Registered as a naturopath.Q. Well, I put to you, Mr Pitt, that what [the complainant] has told the Courtis that you told her that you were an osteopath?A. If I was gonna – certainly could have interpreted that, but it's not what Isay. It is not what I am.Q. So just tell me again specifically what you told [the complainant]?A. It's two and a half years ago. I'm sorry I can't tell you exactly what Iwould've said.Q. So you can't be sure then that you didn't say to [the complainant]: "I aman osteopath."A. No, I can't be sure but I do not practise as an osteopath; I practise as anaturopath, but I am a qualified osteopath and she could've picked that up yousee.Q. But you're not qualified because you're not registered or hold a practisingcertificate?A. I am qualified but not registered.[26] Mr Pitt maintained in cross-examination that he had not used the HVLAtechnique. He also said that pain from his treatment was a plausible outcome. Hisnormal process would be to refer a client to a medical practitioner if the pain had notreceded by the third visit, who could prescribe pain relief if appropriate.Judgment[27] The Judge gave an oral judgment. He first recited the charges. He thensummarised the evidence. In doing so, when summarising the complainant's evidencein chief he commented:[5] I have to say at this point in time that Mr Pitt says that he does not sayand would not say to her that he is a registered osteopath just that he was aqualified osteopath and to be fair [the complainant] does not say that he was aregistered osteopath.[28] Similarly, when summarising the cross-examination of the complainant, theJudge said:[9] Again she repeated that he had told her: "You're lucky I'm anosteopath as well as a naturopath," but the word registered does not appear tohave arisen. [29] When summarising Mr Pitt's evidence, the Judge said:[14] He said that he would have told [the complainant] that he was aqualified osteopath but he would not have described himself as a registeredosteopath because he simply is not one. [30] After summarising the evidence, the Judge gave his reasons for dismissing thecharges as follows:[16] The decision at the end of the day is mine. Did Mr Pitt perform arestricted activity, namely, a high velocity low amplitude manipulativetechnique to [the complainant's] cervical spine joints? It is always difficultwhere there is no specific medical person other than Mr Pitt who was present.There was no other person other than him and [the complainant] so it isbasically a he says/she says situation and although I was concerned thatDr Reid was able to say that what [the complainant] described was an HVLAprocedure, Mr Pitt's evidence leaves me in the position where I am not surewhether or not he performed that procedure and accordingly all three chargesare dismissed.[31] After a short pause in delivering these reasons, he added:5[1] I do not believe he held himself out as a registered osteopath either.He may have said he was a qualified osteopath but not a registered one.The appeal[32] The Ministry submits that it is clear from the judgment that the Judgeproceeded on the basis that the s 7(2) offence requires that the person hold themselvesout as a registered osteopath. In doing so, he misdirected himself.[33] Mr Pitt accepts that the offence can be committed if the person holds themselfout as an osteopath and that there is no requirement that they represent themselves tobe a registered osteopath. He submits the Judge correctly set out the charge and sowas aware of what the offence required. He says the Judge's repeated comments thatMr Pitt did not say he was registered reflected the way the prosecutor hadcross-examined him – specifically, putting to him that he was not qualified because hewas not registered.[34] Mr Pitt also says the Judge accepted his account of what was said, and as tothe treatment given, was a reasonable possibility on a he says/she says case, and thatis why he was acquitted on the charges. Mr Pitt's account was consistent with beinga statement about the past (he was qualified) rather than that he presently waspractising as an osteopath. The Judge's finding that Mr Pitt had not carried out therestricted HVLA treatment supported this conclusion.[35] I am not satisfied the Judge correctly applied the requirements of s 7(2).Although he set out the charge at the outset of his judgment, he did not set out s 7(2)of the Act or show that he had turned his mind to what that offence required. TheJudge's repeated references to Mr Pitt not having said that he was a registeredosteopath are not explained by the cross-examination. Mr Pitt drew a distinction5 The transcription of the Judge's oral judgment did not originally include the Judge's furtherremarks after the pause. This is why the paragraph numbering of this part of the judgment beginsagain at [1].between saying he was an osteopath or that he was a qualified osteopath (either ofwhich he may have said) and saying he was a registered osteopath (which he did notsay). But the fact that he did not say he was a registered osteopath was notdeterminative.[36] The issue was whether, in saying that he was on osteopath or a qualifiedosteopath, in the circumstances in which he said it, he had claimed to be practising asan osteopath or suggested that he practises as an osteopath. The Judge did not addressthis issue. As the parties accept, such a claim or suggestion can be made by someonewithout them stating that they are registered. Even if the Judge gave Mr Pitt the benefitof the doubt and proceeded on his account of what he said, it was capable of being aclaim to be practising as an osteopath or suggesting that he practised as an osteopath.And this was so even with the Judge being unsure that Mr Pitt had carried out theHVLA treatment on the complainant.[37] It might be asked why Mr Pitt would say that he was an osteopath, in thecontext of explaining the neck treatment he proposed to give the complainant, if hewas not intending that to be relevant to her assessment of whether she consented tothe treatment proposed. Mr Pitt says that it was a statement of the past – that is, hequalified as an osteopath and so had knowledge about neck alignment. It was not astatement that he was practising as an osteopath and was about to give an osteopathictreatment. The problem is that the Judge made no finding about this because hewrongly focussed on whether Mr Pitt had said he was registered.[38] I conclude that the Judge misdirected himself when dismissing Mr Pitt on thecharge under s 7(2) of the Act. The next question is as to the order that should now bemade.Determination of appeal[39] Section 300 of the Criminal Procedure Act 2011 applies to this appeal. Itprovides:300 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpartby—(a) confirming the ruling appealed against; or(b) doing any of the following if the court considers the ruling iserroneous and, in the case of the person's conviction oracquittal or of a direction by a court to stay the prosecution orto dismiss the charge under section 147, also resulted in amiscarriage of justice:(i) setting aside the conviction and entering an acquittal,if the person has been convicted; or(ii) directing a new trial, in any case; or(c) varying or substituting the sentence or remitting the sentenceto the sentencing court with directions, if the decision relatesto sentence and the court thinks the decision is erroneous; or(d) remitting the matter to the trial court in accordance with theopinion of the appeal court; or(e) making any other order that the court considers justicerequires.[40] The Ministry submits an order should be made under s 300(1)(d) remitting thecharge back to the trial court for determination in accordance with this judgment. Thiswould mean that the trial Judge would be directed to consider the charge, on theevidence he had already heard, but on the basis that the offence did not require Mr Pittto have claimed he was a registered osteopath.[41] Mr Pitt submits that s 300(1)(d) is not an available option because there is nowno trial court as a result of his acquittal. This is because s 5 of the Criminal ProcedureAct defines "trial court" as meaning "the court before which the defendant is to betried". As he has now been tried, Mr Pitt says there is no court before which he is tobe tried.[42] This submission is supported by Commissioner of Inland Revenue v Parore.6In that case the trial judge had ruled that there was no case to answer on seven charges.On appeal, the Judge considered that the trial judge had erred in law in making that6 Commissioner of Inland Revenue v Parore [2021] NZHC 420.ruling. The Judge said that, as the defendant had been acquitted on those charges, "heno longer 'is to be tried'; there being no trial court to which the matter may beremitted."7 The Judge directed a retrial but said it was to be on the basis of theevidence as it stood.[43] The Ministry submits that if this approach were applied here then the sameoutcome would follow. A retrial would be ordered under s 300(1)(b)(ii), with adirection under s 300(1)(e) that it be on the evidence already heard by the Court andany further submissions made by the parties in light of this appeal.[44] Mr Pitt submits that before a retrial can be ordered the first question is whetherthe Judge's misdirection resulted in a miscarriage of justice. He submits it did notbecause the totality of the evidence supported the acquittal on a correct approach tos 7(2) of the Act. He submits that Mr Pitt's statements were about his qualificationand not about whether he was a practising osteopath. In other words, it was a statementabout the past and was not a statement about his present status for the purposes of hisintention to perform an osteopathic restricted activity (on which he was acquitted).[45] Whether what was said was about the past, or whether the claim or suggestionwas about Mr Pitt's current position, is for the trial Judge to determine in the firstinstance in my view. If it was a claim or suggestion made about Mr Pitt's presentpractice then the misdirection, in leading to an acquittal, would have resulted in amiscarriage of justice. Therefore I am satisfied that there is jurisdiction unders 300(1)(b) to direct a retrial.[46] However, an order for a retrial along with a direction that the retrial be on theexisting evidence, seems to me to be a somewhat circuitous route to the appropriateoutcome. The definition of "trial court" in s 5 applies "unless the context otherwiserequires". I consider that the "trial court", in the context of an appeal against anacquittal on a question of law under s 300, refers to the trial court in which therespondent was tried. This means that on appeal the Court can direct a retrial unders 300(1)(b), or it can make an order under s 300(1)(d) that the trial court determine thematter in accordance with the opinion of the appeal court on the question of law on7 At [19].which the trial court erred. Which order is the more appropriate one will depend onthe circumstances.[47] In my view the appropriate course in this case is to make an order unders 300(1)(d). A retrial would ordinarily mean a new trial with each side free to callwhatever evidence they wished to call. This is unnecessary when the evidence hasalready been called and the trial Judge will have formed a view on that evidence whenhe determined the charges. There is no suggestion that the trial judge is nowunavailable.[48] Lastly, Mr Pitt submits that the Court should decline to make an order for aretrial (or an order under s 300(1)(d)). He is 80 years of age. He has no prior historyof similar complaints or issues. The redetermination would relate to one charge whichhas a maximum penalty of $10,000. The conduct in question was limited to the shortdiscussion between Mr Pitt and the complainant on 7 November 2018 and there wasno wider "holding out". However, these are all matters that can be considered by thetrial court in sentencing if Mr Pitt is convicted on the charge.Result[49] The appeal is allowed. The proceeding is remitted to the trial Judge todetermine the charge under s 7(2) of the Act, in accordance with the opinion of thisCourt that it was not necessary for Mr Pitt to have claimed or suggested that he was aregistered osteopath in order to have committed the offence.Mallon J