PROFESSIONAL CONDUCT COMMITTEE OF THE PHYSIOTHERAPY BOARD v R [2019] NZHC 1516 [2 July 2019]

PROFESSIONAL CONDUCT COMMITTEE OF THE PHYSIOTHERAPY BOARD v R [2019] NZHC 1516[2 July 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2017-419-369[2019] NZHC 1516UNDER The Health Practitioners CompetenceAssurance Act 2003IN THE MATTER An appeal to the High Court pursuant tosection 4 106(3) of the Health PractitionersCompetence Assurance Act 2003BETWEEN PROFESSIONAL CONDUCTCOMMITTEE OF THE PHYSIOTHERAPYBOARDAppellantAND JEREMY NATHAN SPENCERespondentHearing: 4 February 2019Appearances: C Deans for the PCCD McGill and B Zagni for the RespondentFurther submissions andevidence completed:27 March 2019Dateof Judgment: 2 July 2019JUDGMENT OF POWELL J[Penalty]This judgment was delivered by me on 2 July 2019 at 10 a.m. pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] This judgment determines the penalty for a single charge of professionalmisconduct under the Health Practitioners Competence Assurance Act 2003 ("theHPCA Act") for which the respondent, Jeremy Spence, had been found guiltyfollowing an appeal to the High Court.1 The parties agreed that a determination ofpenalty was necessary in this Court as no hearing on penalty proceeded in the HealthPractitioners Disciplinary Tribunal ("the Tribunal") and the Tribunal that heard thecharge can no longer be reconstituted.2[2] At the time the appeal judgment was issued a second appeal, by Mr Spenceagainst a decision of the Tribunal declining Mr Spence permanent name suppression,also stood to be determined. Prior to the hearing on penalty Mr Spence withdrew hisappeal with regard to name suppression and as a result the hearing on 4 February 2019proceeded on the issue of penalty alone.[3] At the hearing on 4 February 2019 it became apparent that a range of furtherinformation was required before an appropriate penalty could be determined. As aresult, the penalty hearing was adjourned part heard to enable further writtensubmissions to be made and evidence to be provided.Background[4] The relevant background is set out in the appeal judgment.3 For the sake ofcompleteness, I summarise it briefly.[5] Mr Spence, a physiotherapist, was found guilty of professional misconductbecause of a relationship between Mr Spence and the complainant, a former patient,that began in December 2015 and ended in February 2016. After providing treatmentto the complainant's daughter in November and December 2015, Mr Spencecommenced treating the complainant for a haematoma on her calf. The first treatmentwas on 16 December, the same day as the complainant's daughter's final treatment,1 Professional Conduct Committee of the Physiotherapy Board v R [2018] NZHC 2531 ("Appealjudgment").2 At [33].3 At [12]-[15] and [29].and was followed by two further treatments on 29 and 31 December 2015. Althoughthe complainant had no further treatment following 31 December, they remained incontact for over a month.[6] Their contact ended in mid-February and following a complaint made in July2016, an investigation took place. Mr Spence was charged with professionalmisconduct for behaving inappropriately towards, and/or entering into aninappropriate relationship with the complainant, who was a former patient and/orpatient and who was the mother of a former patient, by telephoning and inviting herfor coffee; giving her a full body massage when she had attended treatment for a calfinjury; having the complainant over to his house on two occasions; hugging thecomplainant; kissing the complainant; and engaging in inappropriate and/or sexualconversations by text with the complainant.[7] At the hearing before the Tribunal Mr Spence accepted that he had breachedhis professional obligations but denied professional misconduct. The Tribunalaccepted Mr Spence's submission and concluded that Mr Spence's misconduct wasnot sufficiently serious for a disciplinary sanction to be imposed and therefore foundhim not guilty of professional misconduct.4 On appeal I concluded that the secondpart of the test for liability for professional misconduct, the threshold requirement, wasindeed satisfied and allowed the appeal, resulting in the present hearing.5Legal principles on penalty[8] At the outset I note that, in terms of the general approach to be taken andprinciples to be applied, care must be taken not to analogise too far with the criminalsentencing process.6[9] Section 101 of the HPCA Act sets out permissible penalties. The penalties mayinclude:4 At [24].5 At [31].6 Singh v Director of Proceedings [2014] NZHC 2848 at [62]; and Z v Complaints AssessmentCommittee [2009] NZSC 55, [2009] 1 NZLR 1.(a) cancellation of registration;(b) suspension of registration for a period not exceeding three years;(c) an order that the practitioner may only practice in accordance with anyconditions as to employment, supervision or otherwise, such conditionsnot to be imposed for more than three years;(d) an order that the health practitioner is censured;(e) a fine not exceeding $30,000; and(f) an order that the practitioner pay for all of the costs of the Tribunal andthe professional conduct committee or the Director of Proceedings.[10] The Act, however, does not set out the factors the Tribunal, or a Judge onappeal, must consider when deciding which penalty to impose. But the power todiscipline must be exercised in light of the principal purpose of the Act, namely:7 to protect the health and safety of members of the public by providing formechanisms to ensure that health practitioners are competent and fit topractice their professions.[11] As s 3 of the Act makes clear, part of the function of protecting the publicinvolves setting penalties that will deter other health professionals from offending ina similar way. That object has primacy over any punitive purpose.8 The need to punishthe practitioner can be considered but is of secondary importance.9[12] The leading case on the principles relating to the imposition of penalties underthe Act is Roberts v Professional Conduct Committee of the Nursing Council of New7 Health Practitioners Assurance Act 2003, s 3(1).8 Professional Conduct Committee v Martin HC Wellington CIV—2006-485-1461, 27 February2007 at [23].9 Katamat v Professional Conduct Committee [2012] NZHC 1633 at [53].Zealand.10 The High Court established that the Tribunal, or Judge on appeal, musttake into account the following principles:11[44] The Tribunal's first consideration requires it to assess what penaltymost appropriately protects the public[45] Secondly, when assessing what penalty to impose the Tribunal mustbe mindful of the fact that it plays an important role in setting professionalstandards[46] Thirdly, it is also important to recognise that penalties imposed by theTribunal may have a punitive function[47] Fourthly, where it is appropriate, the Tribunal must giveconsideration to rehabilitating health professionals[48] Fifthly, the Tribunal should strive to ensure that any penalty itimposes is comparable to other penalties imposed upon health professionalsin similar circumstances. In stating this objective each case will require acareful assessment of its own facts and circumstances. Rarely will two casesbe identical.[49] Sixthly, it is important for the Tribunal to assess the healthpractitioner's behaviour against the spectrum of sentencing options that areavailable. In doing so the Tribunal must try to ensure that the maximumpenalties are reserved for the worst offenders.[50] Seventhly, the Tribunal should endeavour to impose a penalty that isthe least restrictive that can reasonably be imposed in the circumstances.[51] Finally, it is important for the Tribunal to assess whether or not thepenalty it is proposing to impose is fair, reasonable and proportionate in thecircumstances presented to the Tribunal. Imposing a penalty involves issuesof finely balanced judgement. It is not a formulaic exercise.(Footnotes omitted.)[13] Therefore, the objective seriousness of the misconduct; the need forconsistency with past cases; the likelihood of rehabilitation; and the need to imposethe least restrictive penalty that is appropriate, will all be relevant to the inquiry. Thepenalty must be fair, reasonable and proportionate in the circumstances of the case.The overall decision, however, is ultimately one involving an exercise of discretion.1210 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC3354.11 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC3354.12 Katamat v Professional Conduct Committee [2012] NZHC 1633.The parties' submissions on penalty[14] On behalf of the Professional Conduct Committee of the Physiotherapy Board("PCC") Ms Deans submitted the following penalty should be imposed on Mr Spence:(a) a censure order;(b) the imposition of conditions that he:(i) is subject to supervision for a period of two years upon termsapproved by the Physiotherapy Board; and(ii) completes a course approved by the Physiotherapy Board, at hisown cost, on professional boundaries and ethical obligations;and(c) a starting point of a 50 per cent contribution to the costs of the PCC.[15] The PCC submitted that such a penalty has a rehabilitative and patient safetyfocus but also sends a clear and important message to the profession that Mr Spence'sconduct falls short of accepted standards of practice.[16] Mr McGill for Mr Spence accepted that a censure order is reasonable and isindeed a sufficient penalty in the circumstances, with it being inappropriate for theCourt to impose a further penalty in the form of conditions on his practice. In supportof this submission counsel noted that Mr Spence had already been subject to conditionson his practice between October 2016 and December 2017, and that these conditionshave had a significant impact on Mr Spence personally, professionally and financially,and that they have also contributed to Mr Spence's rehabilitation. Counsel alsosubmitted that, given Mr Spence's precarious financial position, an order of costsshould not be imposed.[17] In the course of submissions counsel referred to a number of cases involvinghealth practitioners entering into inappropriate relationships with current and formerpatients.13 None of the cases appear to be directly comparable with the present as allinvolved significantly more serious conduct; whether because of the duration of therelationship, the seriousness of the particular conduct, the impact on the complainantor various combinations of all three. The cases really confirm that tailored penaltiesare necessary to the facts and merits of each case.14The appropriate penalty[18] As previously noted, both the PCC and Mr Spence agree that a censure isappropriate and, as a result, the issues to be determined are whether any further penaltyis required and whether and to what extent Mr Spence should be liable for the costs ofPCC (both in respect of the investigation and this appeal).Further supervision or training required?[19] The most serious aspects of Mr Spence's misconduct were set out in the appealjudgment in the following terms:15(a) Mr Spence developed a personal/emotional connection with thecomplainant while he was treating her daughter over a period of severalweeks while the complainant was present. The three treatmentsprovided by Mr Spence to the complainant must be seen in this widercontext; it was in the course of this broader professional relationshipthat a range of sensitive information was initially exchanged.(b) Instead of Mr Spence discussing his growing feelings towards thecomplainant with a colleague or supervisor he obtained thecomplainant's contact details from the clinic records following hertreatment on 29 December, and then rang her from his personal mobile.Whether or not this call was to provide information relating to herdaughter's treatment, he went on to initiate social contact with the13 Ms A (917/Nur15/333P); Mr N (838/Phys16/338D); Williams (856/Phys16/345P); Singleton(398/Phys10/158P); Harypursat (729/Med 15/316D); Ms L (882/Nur15/324P); Singh v Directorof Proceedings [2014] NZHC 2848; and Allen (27/OT05/14D).14 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC3354 at [64].15 Appeal judgment, above n 1, at [29].complainant, and the provision of his mobile number facilitated thebeginning of ongoing phone and text communications between the two,including between the treatment on 29 December and the complainant'sthird and final treatment on 31 December.(c) At the 31 December appointment Mr Spence provided the complainantwith "massage treatment" up to at least the level of the complainant'sshoulder blades, treatment which required her to partially undress.While the Tribunal concluded the treatment itself was not inappropriatethe complainant's medical records completed by Mr Spence recordedonly that the complainant had received treatment to her calf/knee area.The massage treatment was not mentioned at all.(d) Whether or not social contact between Mr Spence and the complainanttook place at Mr Spence's house immediately after the 31 Decembertreatment, Mr Spence and the complainant met the day after the secondtreatment on 1 January, after a further exchange of texts and phone callson the evening of 31 December and the morning of 1 January.(e) Until the relationship ended on 16 February, Mr Spence acknowledgedhe met the complainant on a total of four occasions, and that therelationship included hugging, romantic kissing on one occasion, andinappropriate texting.(f) Mr Spence initially accepted the complainant's decision to end therelationship, but he subsequently texted the complainant to advise:Your [sic] a dick you should have just told me to back off. It's been a longtime since I had a decent female to chat and spend time with. Now I feel likea knob and totally did not mean to ruin anything.(g) Mr Spence sent Facebook friend requests on two occasions after therelationship had ended.[20] Overall it is clear Mr Spence demonstrated a lack of awareness of hisprofessional obligations in initiating the relationship, as well as shortcomings in hisrecord keeping of the treatment provided. Furthermore, the relationship includedsubstantial use of inappropriate texting in a context where Mr Spence had obtainedsignificant sensitive information from and about the complainant in the course of theprofessional relationship, and which gave him the opportunity to undertake therelationship.16[21] There is no question that this behaviour raised serious issues given that anypatient is inherently vulnerable within the practitioner/patient relationship. This isbecause in the context of a professional medical relationship, the starting point is thata professional boundary is required because the patient/professional relationship is notinherently one of equality. In cases of power imbalance, therefore, the inevitability ofdetriment justifies treating the imbalance as an aggravating factor in assessing theseriousness of the misconduct.[22] On the other hand, Mr Spence's misconduct is, as noted, substantially lessserious than behaviour considered in the range of cases referred to by counsel.[23] It is, in particular, clear, both from the original Tribunal decision and my ownimpression of the evidence, that Mr Spence was motivated by nothing more than agenuine desire for friendship with the complainant and was at that time a relativelyinexperienced practitioner. He was relatively new to the physiotherapy profession,having only been working for about three years at the time of the complaint, andtherefore did not have the experience that may have allowed him to better recognisehis breach of professional boundaries. Until that time Mr Spence had notdemonstrated any causes for concern and was regarded as a competent practitioner.[24] After the misconduct issues arose, and even while still disputing the charge,Mr Spence took proactive steps to improve his understanding of his professionalobligations, including attending professional development and educational seminars.At the same time, Mr Spence was made subject to conditions on his practice betweenOctober 2016 and December 2017, preventing him from contacting female patientsoutside of the professional/patient relationship; nor assessing, treating or monitoringfemale patients; and providing that he only practised under supervision. Furthermore,16 Appeal judgment, above n 1, at [30].even after the initial conditions lapsed Mr Spence has proactively sought ongoingmentoring, both professional and spiritual and is intending further study ofphysiotherapy, evidencing his commitment to his profession.[25] While the PCC does not dispute either the initial conditions nor the steps takenby Mr Spence, it submitted that those steps do not remove the need for furthersupervision and training to be imposed as a penalty. Ms Deans submitted that thecourses attended by Mr Spence were not entirely focused on ethics-type issues, norwas the professional mentor engaged by Mr Spence approved by the PCC.[26] There is some force in Ms Deans' submissions. However, Mr Spence couldonly attend courses that were available and his mentor, while not approved by thePCC, was one of a number of mentors listed on the Physiotherapy New Zealandwebsite str being a person who has "expressed an interest in providing professionalsupervision to members". While Physiotherapy New Zealand made it clear that ittakes no responsibility for the quality of supervision, the supervisors listed on thewebsite is nonetheless the starting point for any professional supervision within theprofession. It was therefore not unreasonable for Mr Spence to set up a professionalsupervision arrangement utilising one of the names on the list.[27] Taking these matters together, I am satisfied that to ignore the nature andduration of the steps taken by or required to be taken by Mr Spence would be wrong.This is particularly so when, since the appeal hearing, Mr Spence has, through thewithdrawal of the name suppression appeal, definitively acknowledged fault andconceded that his behaviour was unwise and inappropriate. I am in no doubt that thenecessarily protracted resolution of the charge against Mr Spence, the obvious stressand humiliation that that has entailed, and the steps he has been required to take hasprovided a more than salutary lesson on his professional obligations. When thesecircumstances are properly considered against the nature of the misconduct for whichMr Spence was found guilty, I am clear that no further period of supervision or trainingshould be imposed as a penalty, nor is such required in order to protect the public.Costs[28] Turning now to costs, following the hearing the PCC confirmed that its totalcosts incurred as a result of its investigation and prosecution of Mr Spence was$57,266.63 (excluding GST). In addition, the PCC seeks scale costs of $12,599.50 forthe High Court appeal. No issue is taken with either of these figures on behalf of MrSpence.[29] Counsel agree the leading authority on costs is Cooray v PreliminaryProceedings Committee.17 In that case Doogue J held that the starting point for areasonable order of costs is 50 per cent, and that in some circumstances downwards orupwards adjustment will be appropriate.18 When considering whether to depart fromthe starting point of a 50 per cent contribution to costs the courts will take intoconsideration the co-operation of the practitioner, attempts made to reduce costs, andthe financial circumstances of the practitioner.19[30] With regard to the financial circumstances of the practitioner, in Williams thepractitioner was ordered to pay 12 per cent of costs where she had particularly limitedfinancial means and where her financial position would be further impacted by aperiod of suspension.20 Likewise, in Pearson the Tribunal did not impose any orderfor costs due to the practitioner's "dire" financial circumstances, which made anyaward for costs impossible to be enforced.21 Mr McGill submits, given Mr Spence'sprecarious financial position, that it is unlikely that an award of costs could be enforcedsuch that an order for costs should not be imposed.[31] In the present case, I am satisfied that a discount is appropriate to reflect thefact that Mr Spence has co-operated throughout the PCC, Tribunal and High Courtprocesses. He did not unreasonably defend his charge in the Tribunal and acceptedthe decision of the Court on appeal.17 Cooray v Preliminary Proceedings Committee HC Wellington, AP 23/94 14 September 1995.18 See also Kenny (990/Chiro18/421P); Hart-Murray (986/Mid18/419P); and Macdonald v PCC HCAuckland CIV-2009-404-1516 [10 July 2009] at [102].19 Harypursat (Med18/413P); Farr (Med17/408P); and Winefield v PCC HC Wellington, CIV-2006-485-2225.20 Williams (856/Phys16/345P).21 Pearson (39/Nur05/23P).[32] More fundamentally, it is clear that Mr Spence is in an exceedingly difficultfinancial situation. He is a single father with joint custody of his 15-year-old daughter.Based on the figures provided at the penalty hearing Mr Spence has little income andsignificant outgoings, which include the support of his daughter. Furthermore, as aresult of the conditions on his practice from October 2016 to December 2017, hisworkload has significantly decreased to 10-15 hours a week and, therefore, his earningcapacity significantly reduced.[33] While therefore a moderate award of costs would have been entirelyappropriate so as to not require the physiotherapy profession as a whole to bear thefull cost of professional disciplinary proceedings,22 in this case I am satisfied that theimposition of more than a token amount of costs will place an intolerable burden uponMr Spence and not give him a realistic chance to move on from this issue, to learnfrom his mistakes and become a valued member of the profession. In thosecircumstances I am therefore satisfied that a total award of costs in the sum of$2,500.00 is appropriate and the most that Mr Spence could be realistically expectedto pay.Decision[34] After taking into account the seriousness of the charge, the aggravating andmitigating features and relevant cases, the appropriate and proportionate penaltyoverall is:(a) An order censuring Mr Spence for his professional misconduct; and(b) costs in the sum of $2,500.00 in respect of both the costs incurred bythe PCC for the investigation and prosecution of Mr Spence and inrespect of the present appeal and penalty hearing._______________________________Powell J22 Vasan v The Medical Council of New Zealand HC Wellington, AP43/91.