MINISTRY OF HEALTH v PITT [2021] NZHC 1789

MINISTRY OF HEALTH v PITT [2021] NZHC 1789 [15 July 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2021-485-30[2021] NZHC 1789BETWEEN MINISTRY OF HEALTHApplicantAND GEOFFREY RONALD PITTRespondentHearing: 15 July 2021Counsel: S C Carter for ApplicantA B Darroch and E Wilson for RespondentJudgment: 15 July 2021ORAL JUDGMENT OF MALLON JIntroduction[1] Geoffrey Pitt faced three charges under the Health Practitioners CompetenceAssurance Act 2003 (the Act), one in relation to allegations he falsely claimed he wasan osteopath and two for allegations he performed a restricted treatment on thecomplainant. In a judge-alone trial he was acquitted of all three charges.1 TheMinistry of Health now seeks to appeal that decision in relation to one of the charges.2If leave is granted, the substantive appeal is to be dealt with separately.3Factual background[2] Mr Pitt, aged 80, trained as a bonesetter in the 1950s and completed training inosteopathy in 1983.1 Ministry of Health v Pitt [2021] NZDC 8189.2 Criminal Procedure Act 2011, s 296.3 Direction of Simon France J, 31 March 2021.[3] The Act regulates health professionals, including osteopaths. This meansosteopaths must be registered and hold a practising certificate. Osteopaths areauthorised to perform High Velocity Low Amplitude (HVLA) manipulation to thenecks of patients.[4] Mr Pitt was initially registered as an osteopath under the Act and was issued apractising certificate in 2003. It was not renewed in 2005. Following the decision ofthe Council not to renew the practising certificate, Mr Pitt wrote to the Council,confirming he had no intention of practising osteopathy or advertising himself as suchfrom then on. It is accepted that he was not a registered osteopath and did not hold apractising certificate at the time of the matters which gave rise to the charges.[5] On 7 and 14 November 2018, Mr Pitt saw a patient at his naturopath clinic inWellington, who had sought treatment for chest congestion from him as a naturopath.The prosecution alleged that in the first hour-long session with this patient, Mr Pittclaimed or did something calculated to suggest that he practised as an osteopath whenhe did not hold a practising certificate as a health practitioner of that kind, in breachof s 7(2) of the Act.[6] It also alleged that he breached s 9(1) and (4) of the Act by performing HVLAtreatment but the acquittals on these charges are not challenged now by the Ministry.Appeal[7] Section 7 of the HPCAA 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.[8] Leave to appeal is required. For leave to be granted there must be a questionof law that arises, as relevant here, in the determination of the charge.4 If the Court issatisfied as to that, it has a discretion as to whether leave should be granted, takinginto account whether the arguments may have merit and the question is of generalimportance.5Jurisdiction[9] The Ministry contends a misdirection of law is evident in the Judge's decisionin acquitting Mr Pitt on the charge under s 7(2). It says this is because the Judgeproceeded on the basis that, in order for an offence to have been committed under s7(2), the respondent must have specifically held himself out as a "registered" healthpractitioner. The Ministry submits there is no such requirement in s 7(2).[10] In discussing the evidence, the Judge referred first to the evidence of thecomplainant and 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 patient] does not say that he said he wasa registered osteopath.[11] In discussing the cross-examination of the complainant, he 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. She said that on the second occasion that she felt her whole neckwas being screwed off.[12] Then, in discussing Mr Pitt's evidence, the Judge said:4 Criminal Procedure Act, s 296(2) and (3)(a).5 R v Muraahi [2021] NZCA 214 at [8].[14] He said that he would have told [the patient] that he was a qualifiedosteopath but he would not have described himself as a registered osteopathbecause he simply is not one. [13] The Judge then reached the following conclusion:6[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.[14] That is the extent of Judge's reasoning in relation to s 7(2).[15] The Ministry frames the question of law as whether a person needs tospecifically have held themselves out as being a registered health practitioner whenthey are not, rather than just holding themselves as a health practitioner withoutspecific representation as to registration status. It submits the latter is the correctposition, based on the provision and the statutory context.[16] The respondent submits that, although the Judge referred to "registered" in thepassages I have set out above, a correct reading of his decision overall is that he wasnot adding that as a requirement to a charge under s 7(2). The respondent notes thatthe Judge had the benefit of hearing the evidence says and the Ministry, in focussingon the references to "registered", is taking the Judge's reasoning of all the evidenceout of context. The respondent submits that the Judge was referring to Mr Pitt'sevidence as a statement about past fact and not about his current status and on thisbasis there was insufficient evidence to establish the charge.[17] While I consider that the respondent's position is arguable, I also consider it isarguable that the Judge misdirected himself as contended by the Ministry in light ofthe repeated emphasis in the judgment on the word "registered".6 These are two typed oral judgments. The first one is the fuller one and discussed the evidencereferred to in [10]-[12] above. The second one contained two paragraphs, including the paragraphcited at [13] above. Counsel explained that these remarks followed the longer version of hisremarks after a short pause and this meant that when his ruling was typed up, it omitted the twoparagraphs that followed after the pause. This is why there is a second typed oral judgment.Discretion[18] As to my discretion, the respondent submits that the appeal is contrary to theinterests of justice given Mr Pitt's limited culpability even if the charge wasestablished and his personal circumstances. He says that even if the appeal wasallowed and was successful, his low culpability, responsible approach to his work andhis age would likely lead to a very minor penalty, if any. While I agree with thatsubmission about outcome, I also agree with the Ministry that the proper approach tos 7(2) is an important one. I therefore consider that it is appropriate to grant leave inthe interests of justice, notwithstanding Mr Pitt's limited culpability and the likelihoodof a very minor penalty, if any. Those are matters that would be taken into account ifthe appeal is successful.Result[19] I accordingly grant leave.Mallon J