BEN-DOM v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCIL OF NEW ZEALAND [2020] NZHC 3094

BEN-DOM v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE MEDICAL COUNCILOF NEW ZEALAND [2020] NZHC 3094 [23 November 2020]JUDGMENT ISSUED TO COUNSEL ONLY FOR A PERIOD OF FOUR DAYSPURSUANT TO [199] OF THIS JUDGMENT.ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF ALL COMPLAINANTS.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-206[2020] NZHC 3094IN THE MATTER OF an appeal pursuant to section 106(2) of theHealth Practitioners Competence AssuranceAct 2003BETWEEN RAN BEN-DOMAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE APPOINTED BY THEMEDICAL COUNCIL OFNEW ZEALANDRespondentHearing: 19-22 October 2020Counsel: D L Stevens QC and S Tomlinson for appellantA K Miller and H K Goodhew for respondentD D Vincent for Health Practitioners Disciplinary TribunalJudgment: 23 November 2020RESERVED JUDGMENT OF DOBSON JContentsIntroduction [1]The statutory context [12]The complaints [16]Grounds of appeal [32]Consultations arguably were clinically justified [32]Theory of medicine defence [35]Credibility findings [47]Complainant A [49]Complainant B [55]Failures to make adequate notes of consultations [63]Challenges to factual findings on individual complaints [74]Complainant A [75]Complainant E [81]Complainant G [85]Complainant H [88]Complainant F [102]Professional misconduct not made out [112]Misapplication of s 100(1)(a) and (b) of the Act [125]Cultural differences and language issues [132]Name suppression [140]Imposition of unfair conditions [154]Fine of $5,000 excessive? [160]Challenges to the reasonableness of costs orders [164]PCC cross-appeal [181]Costs [194]Summary [197]Introduction[1] This is an appeal brought pursuant to the provisions of the Health PractitionersCompetence Assurance Act 2003 (the Act) by a medical practitioner who has beenfound guilty of professional misconduct by the Health Practitioners DisciplinaryTribunal (the Tribunal).1[2] The appellant immigrated to New Zealand in 2009. He had practised medicinein Israel since 1989. His conduct in consultations with nine different female patientsbetween June 2011 and May 2017 resulted in complaints that were investigated by aprofessional conduct committee (PCC) appointed pursuant to procedures under theAct. The investigation led to a charge of professional misconduct, the terms of whichincluded 12 particulars and a number of sub-particulars.21 A Professional Conduct Committee appointed by the Medical Council v B HPDT Wellington1078/Med 19/445P (the Tribunal decision).2 One of the particulars was withdrawn at the hearing.[3] All of the nine complainants were female patients of other doctors at themedical centre at which the appellant worked as a general practitioner in the relevantperiod. Their complaints arose out of consultations with the appellant who saw himwhen their regular doctor was unavailable.[4] Eight of the women complained that the appellant raised matters of breasthealth with them, in contexts unrelated to the medical concerns about which they hadsought an appointment. They also complained that the appellant had raised the topicinsensitively and persisted with it, despite varying levels of evident reluctance on theirparts.[5] Four of the complainants permitted the appellant to conduct a clinical breastexamination (CBE), having shown varying levels of reluctance for that to occur.[6] The ninth complainant was a 15 year old girl who had consulted the appellantabout a very sore throat. He initiated a discussion about sexual intercourse andmasturbation.[7] After interviewing all the complainants and the appellant, the PCC presentedthe charge and all its particulars on the basis that it accepted the appellant's conductwas not undertaken for sexual gratification. The Tribunal accepted that to be the case.[8] Following a 10 day hearing in November 2019, the Tribunal delivered itsdecision on 17 April 2020. The charge was found to be made out, but not to the extentthat all the particulars were upheld. The appellant was censured, fined the sum of$5,000 and ordered to pay costs of $102,400 towards the inquiry and prosecution and$57,600 towards the costs and expenses of the hearing. The appellant's applicationfor non-publication of his name was declined but there has been no publication of hisname pending determination of the appeal.[9] After receipt of the complaints, on 26 October 2017 the Medical Council ofNew Zealand (MCNZ) imposed interim conditions on the appellant's entitlement topractise. The imposition of those conditions was the subject of a separate appealpursued in the District Court. That led to an agreement on 16 May 2018 permittinghim to practise on somewhat less restrictive conditions that were to apply until theTribunal's decision.3[10] The appellant contested the outcome and findings of the Tribunal, giving noticeof 23 grounds of appeal. Shortly before the hearing of the appeal, the appellant advisedthat three of those grounds were being abandoned.[11] The Tribunal generally abides the decision of the Court on appeals from itsdecisions. It instructed counsel to participate in this appeal because the appellantcontested its jurisdiction to impose costs orders on the terms that it did. However, thejurisdictional challenge in respect of costs was not pursued and at the hearing I heardrelatively confined submissions on the merits of the costs orders from Mr Vincent,who was in other respects excused from attending the hearing of the appeal.The statutory context[12] Grounds for disciplining a health practitioner are stipulated in s 100 of the Act.The relevant grounds are as follows:100 Grounds on which health practitioner may be disciplined(1) The Tribunal may make any 1 or more of the orders authorised bysection 101 if, after conducting a hearing on a charge laid undersection 91 against a health practitioner, it makes 1 or more findingsthat—(a) the practitioner has been guilty of professional misconductbecause of any act or omission that, in the judgment of theTribunal, amounts to malpractice or negligence in relation tothe scope of practice in respect of which the practitioner wasregistered at the time that the conduct occurred; or(b) the practitioner has been guilty of professional misconductbecause of any act or omission that, in the judgment of theTribunal, has brought or was likely to bring discredit to theprofession that the health practitioner practised at the time thatthe conduct occurred; or3 I was not directed to any detail of that other appeal.[13] The range of penalties the Tribunal may impose is listed in s 101, and indescending order of seriousness after cancellation of registration and suspension for aperiod not exceeding three years, the lesser penalties are:101 Penalties(1) In any case to which section 100 applies, the Tribunal may—(c) order that the health practitioner may, after commencingpractice following the date of the order, for a period notexceeding 3 years, practise his or her profession only inaccordance with any conditions as to employment,supervision, or otherwise that are specified in the order:(d) order that the health practitioner be censured:(e) subject to subsections (2) and (3), order that the healthpractitioner pay a fine not exceeding $30,000:(f) order that the health practitioner pay part or all of the costsand expenses of and incidental to any or all of the following:(i) any investigation made by the Health and DisabilityCommissioner under the Health and DisabilityCommissioner Act 1994 in relation to the subjectmatter of the charge:(ii) any inquiry made by a professional conductcommittee in relation to the subject matter of thecharge:(iii) the prosecution of the charge by the Director ofProceedings or a professional conduct committee, asthe case may be:(iv) the hearing by the Tribunal.[14] Appeals against findings under s 100 and penalties imposed under s 101 areprovided for in s 106(2) of the Act. Section 109(2) provides that the appeal is to be byway of rehearing. Under s 109(3), the Court may confirm, reverse or modify thedecision or order appealed against and may make any other decision or order that theTribunal could have made.[15] The appeal against liability and penalty findings is a general one to which theapproach of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestarapplies.4 This means that the appellant bears the onus of satisfying the Court that itshould differ from the Tribunal's decision and the weight that the Court gives to theTribunal's conclusions is a matter of judgement in each particular case.5 I separatelyconsider the bases for appeals against costs orders, and from the decision not tosuppress publication of the appellant's name, when I address those aspects of theappeal.6The complaints[16] On 8 June 2011, complainant A took her six year old son for a consultationabout his health. During the consultation, the appellant raised the topic of her breasthealth with complainant A in circumstances she found embarrassing. Theembarrassment was increased by the matter being raised in the presence of her son.[17] On 28 June 2012, complainant B consulted the appellant complaining of a sorethroat. The appellant raised the topic of breast health and performed a CBE. Thiscomplaint included that the appellant did not offer a chaperone to be present, theexamination was not conducted consistently with accepted medical practice and,whilst carrying out the CBE, the appellant observed that the complainant was veryattractive.[18] On 29 November 2012, complainant C consulted the appellant about an upperrespiratory tract infection and repeat prescriptions. The appellant raised the topic ofbreast health and performed a CBE, which the complainant considered took anunreasonable length of time, and more time was spent on her breast health than on thehealth concern for which the appointment had been arranged. A trainee doctor waspresent for the consultation.[19] On 13 February 2014, complainant D consulted the appellant about blisteredeczema on her hand and the appellant unexpectedly raised the topic of breast self-examination. The discussion was not recorded in the patient's notes.4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.5 Emmerson v A Professional Conduct Committee appointed by the Medical Council ofNew Zealand [2017] NZHC 2847 at [86]–[97]; Johns v Director of Proceedings [2017] NZHC2843 at [68]–[70].6 See [142], [149] and [167] below.[20] On 15 August 2014, complainant A consulted the appellant again, this timeunaccompanied by her son and to consult about stress. The appellant raised the topicof breast health with her and performed a CBE. The patient complained that neither aprivacy curtain nor a modesty blanket were used during the examination, which sheconsidered took an unreasonably long time, and that the appellant made aninappropriate complimentary remark about her breasts.[21] On 26 March 2015, complainant E consulted the appellant about diarrhoea anda urinary tract infection. The appellant raised the topic of breast health, asked her todemonstrate how she self-examined her breasts and offered to perform a CBE.[22] On 9 April 2015, complainant F, then a 15 year old girl, consulted the appellantabout a very sore throat. He initiated a discussion about sexual intercourse on the basisof a note of a previous consultation made by her regular doctor. He discussed theprospect of masturbation as being preferable to casual sex and persisted in discussingsexual matters when she was embarrassed and uncomfortable at his doing so. It wasthe first occasion on which she had visited a doctor on her own. This complainantknew her father to be a patient of the appellant, and was concerned about the risk thathe would not respect the confidentiality of matters she discussed with him[23] On 17 May 2016, complainant G consulted the appellant about asthma and heraised the topic of breast health with her. The appellant repeatedly offered to performa CBE or demonstrate how the patient should self-examine her breasts, both in thepresence of the patient's 14 year old daughter and while the appellant had excludedher daughter from the room.[24] On 24 May 2017, complainant H consulted the appellant about a repeatprescription for medication. The appellant raised the topic of breast health with herand performed a CBE. He also offered to perform a cervical smear test, failed to offera chaperone being present and inadequately recorded the matters that had occurred inhis notes of the consultation. The patient complained that the appellant had made aninappropriate comment about her breasts during the examination.[25] In May 2016, the manager and the then managing partner of the generalpractice where the appellant was working discussed with him his practice of raisingbreast health with patients when it was unrelated to the reason for their consultationand was not initiated by the patient. That led to the appellant completing a writtenundertaking in June 2016 to the effect that he would not do so in the future.7 Theconduct complained of by complainant H occurred some 11 months after theundertaking had been given, and the particulars in respect of that complaint includedthat the CBE was carried out in breach of the undertaking.[26] In summary, of the four CBEs conducted, only one (that of complainant C inNovember 2012) occurred in the presence of a chaperone. Two out of the four CBEswere not recorded in notes made by the appellant of the respective consultations.Similarly, where the complaint was of the appellant initiating discussions of breasthealth and the practice of breast self-examinations, on two of the four occasions he didnot record in notes of consultation that that topic had been addressed.[27] The appellant acknowledged that he was out of step with the mainstreamthinking of the medical profession in New Zealand about advice to women for breasthealth. The charge was brought on the basis that his conduct breached ethicalobligations and accepted standards of practice, including (but not limited to):• MCNZ statements on good medical practice (June 2008, April 2013, June2016);• MCNZ statement on sexual boundaries in the doctor-patient relationship –a resource for doctors (October 2009); and• MCNZ statement on the maintenance and retention of patient records(August 2008).[28] The appellant contended both before the Tribunal and on appeal that hispractice of routinely and proactively raising breast health with female patients,including that they should practice breast self-examination and have CBEs conducted7 The details of this undertaking are discussed at [90] below.by their doctor in the annual intervals between two yearly mammograms, was goodpractice and saved patients' lives.[29] This approach is contrary to accepted practice in New Zealand since about themid-2000s. A number of the publications relied on by the PCC and endorsed by itsmedical expert called before the Tribunal reject the practice of self-examination,essentially because it is likely to lead to women unnecessarily worrying aboutunidentified lumps in their breasts. Also, it can be insufficiently reliable in identifyingpotentially cancerous growths.[30] In all but two of the 12 particulars of the charge, the terms alleged that in eitherinitiating dialogue about CBEs and breast self-examination, or where CBEs had beenconducted by him, the appellant's conduct was not clinically justified.[31] The Tribunal upheld that element in respect of both forms of complaint of theappellant's conduct.Grounds of appealConsultations arguably were clinically justified[32] The first ground of appeal was that the Tribunal erred in accepting the PCCcase that initiation of discussion about breast health by the appellant was not clinicallyjustified. The appellant acknowledged that he was aware of guidance influencingacceptable standards of practice in New Zealand on breast health, but disputed that hisconduct in initiating discussions about breast examinations, and in the cases he didconduct CBEs, could be correctly characterised as not clinically justified. In effect,on this and the second ground of appeal, he argued that there continued to besubstantial support internationally for the practices he adopted, and that it was open tohim to form the professional opinion that the interactions he undertook with each ofthe complainants were clinically justified.[33] The Tribunal heard substantial evidence on relevant standards in New Zealand,and on the recommended approach as publicised by the Cancer Society ofNew Zealand and the New Zealand Breast Cancer Foundation. The evidence for thePCC was that from at least 2002 onwards, there has been published advice that therewere no (or insignificant) benefits from breast self-examination or CBEs, thatparticularly being the case where the patient was not at a moderate to high risk ofbreast cancer (based on family history and other indicators).[34] The Tribunal eschewed any responsibility to articulate techniques, merits anddisadvantages or otherwise of processes for breast awareness,8 but did find on theevidence that breast self-examination was no longer actively encouraged. It was opento the Tribunal on the preponderance of expert evidence before it to take that view.On the facts, it was clear that the appellant was acting contrary to the practices adoptedby the medical centre in which he was working, and also contrary to recommendedpractices in New Zealand. There was insufficient in the literature (reflecting theposition in overseas countries) which supported the conduct of CBEs and teachingpatients to self-examine their breasts on which the Tribunal could have found that suchpractices were indeed clinically justified for patients where the risk of breast cancerunder the Ministry of Health recommended standards was low or low to medium. Thatwas the status of each of the complainants in question. Accordingly, the appellantcannot make out an error by the Tribunal in findings that the relevant matters he raisedwith patients were not clinically justified.Theory of medicine defence[35] The appellant maintained the legitimacy of his view on proactive consultationsabout breast health not only as a matter of justification for his conduct, but also as thebasis for a defence under s 100(4) of the Act, which provides:No person may be found guilty of a disciplinary offence under this Part merelybecause that person has adopted and practised any theory of medicine orhealing if, in doing so, the person has acted honestly and in good faith.[36] On the second ground of appeal, Mr Stevens argued that the Tribunal's failureto accept that this defence applied was an error of law. He argued that this defencewas a complete answer to substantially all of the particulars of the charge.8 Tribunal decision at [115].[37] The scope of this defence, as it appeared in the previous statute in the sameterms, was considered in the 1992 decision in Tizard v Medical Council ofNew Zealand.9 In that case, a Full Court of the High Court observed:10 It is of interest that, while several have seen "theory of medicine"exceptions as being intended to provide room for minority views, no decisionhas recognised the idiosyncratic view of a single practitioner, unsupported byscientific proof or by a significant number of his or her fellow practitioners,as "a theory of medicine".[38] The application of the defence has been described by the authors of HealthLaw in New Zealand in the following terms:11The position is that, while the defence appears to provide a small and uncertaindegree of leeway to a doctor who practises a form of alternative medicine heor she genuinely believes to be effective, the "theory of medicine" defencemay not, in general, hinder courts and disciplinary tribunals from assessingthe actions of such a doctor in accordance with the usual tests for expectedprofessional standards.[39] Mr Stevens criticised the Tribunal's rejection of the "theory of medicine"defence on a number of grounds. First, he contended that the Tribunal's decisionrequired that a qualifying "theory of medicine" would have to be a new one. In threeparagraphs considering the possible availability of this defence to the appellant, theTribunal did observe that there was no new theory of medicine about the preferableapproach to take in encouraging female patients to be aware of breast health.12[40] Read in context, however, those comments do not suggest that the Tribunalmisunderstood the nature of the defence by requiring a theory of medicine to be a newone for it to qualify. Rather, they are in the context of the appellant's approach beingsubstantially outdated in terms of MCNZ statements on practice, and guidance fordoctors in New Zealand. The Tribunal comments reflect an analysis that there is norestoration of the previous standards which have now been discarded in this countrybut are still adhered to by the appellant. I am not satisfied that the Tribunal decision9 Tizard v Medical Council of New Zealand HC Auckland M2390/91, 10 December 1992.10 At 23.11 Peter Skegg and Ron Paterson Health Law in New Zealand (Thomson Reuters, Wellington. 2015)at [4.4.9].12 Tribunal decision at [131]–[133].reflects any error in its understanding of the scope of a theory of medicine that mightafford such a defence.[41] The second aspect of the appellant's criticism was that the Tribunal failed totake into account what Mr Stevens submitted to be "the strong support it continues toderive from organisations of high standing in the USA". Mr Stevens argued that theappellant was entitled to rely on numerous publications which he contended were ofhigh standing, mostly published in the United States and which endorsed the practiceof CBEs and recommending patients to undertake self-examinations.[42] Those opinions were commented on by witnesses offering expert evidence tothe Tribunal. The principal expert called by the PCC was Professor Bruce Arroll whois professor of general practice at Auckland University Medical School, and also ageneral practitioner in practice in Manurewa. On the basis of the evidence, it wasclearly open to the Tribunal to find that the approach the appellant contended for wasnot in conformity with accepted medical practice in New Zealand. Further, that theacademic articles cited for the appellant did not have relevant standing to validate hisapproach as an alternative theory of medicine. Mr Stevens criticised the evidence ofProfessor Arroll where he dismissed the writings cited for the appellant as having novalue at all. According to Mr Stevens, that attitude showed a lack of objectivity.Further, Mr Stevens argued that the Tribunal had to do more in analysing thesematerials than merely find that it preferred Professor Arroll's opinion.[43] However, there was a good deal more to the medical opinions against theappellant's approach than their rejection by Professor Arroll. I am satisfied there wassufficient evidence for the Tribunal to come to the view it did.[44] One of the doctors called on behalf of the appellant, Dr Eletha Taylor, acceptedthat the current body of medical opinion in New Zealand, and in other similarenvironments such as Australia and the United Kingdom, was that the evidence doesnot support routine self-examination by patients. Dr Taylor acknowledged that viewwas the subject of controversy in the United States. The evidence of at least three, andpotentially four, other experts was consistent with this and a number confirmed thatCBEs are not recommended as a screening test.13 The court on appeal is not in aposition to reverse the Tribunal's conclusion, where it was supported on thepreponderance of evidence.[45] It was clear on the evidence that the appellant was aware of reputable literaturedating from 2003 that breast self-examination was no longer recommended inNew Zealand and that subsequent publications which articulated standards that wereto be followed required doctors to approach consultations about breast awareness quitedifferently from the practice the appellant adopted. There was evidence that his peersin the practice and his employer expressed concern at the manner in which hecontinued to raise the topic of breast health and breast examinations with femalepatients, but the appellant rejected those concerns, maintaining that his view wascorrect.[46] Accordingly, there was no error by the Tribunal in rejecting Mr Stevens'submission that there is, in the New Zealand general practice environment, a validalternative to the mainstream view that still endorses the practices of CBE and breastself-examinations. It follows that the appellant's adoption of that view cannotconstitute a theory of medicine for the purposes of the defence under s 100(4) of theAct.Credibility findings[47] Mr Stevens made detailed submissions to the Tribunal challenging thecredibility of all or relevant parts of the evidence of a number of the complainants. Inthe third ground of appeal, he advanced similarly detailed arguments challenging theTribunal's findings that complainants A and B were credible. Mr Stevens submittedthat the extent of inconsistencies and demonstrated unreliability of the evidence fromthese complainants should have required the Tribunal to reject their claims where theywere contested by the appellant.13 While being questioned by members of the Tribunal, Dr Taylor considered that the evidence wasnot there for GPS to be preforming CBEs.[48] For the PCC, Ms Miller urged caution in revisiting credibility findings becausethe Tribunal had the advantage of seeing and hearing these complainants. She citedthe observation of the Privy Council that a transcript may be treated as "the dead bodyof the evidence, without its spirit".14 Credibility findings are, however, not inviolate.Finders of fact can demonstrably err in their process of assessing credibility andreliability, and the Court has, in Rabih v Professional Conduct Committee, endorsed alist of indications for consideration of the credibility of a complainant's evidence.15Those considerations are:16(a) The manner and demeanour of the witness when giving evidence.(b) Issues of potential bias, that is, to what extent was evidence givenfrom a position of self interest.(c) Internal consistency or, in other words, whether the evidence of thewitness was consistent throughout, either during the hearing itself, orwith regard to previous statements.(d) External consistency or, in other words, was the evidence of thewitness consistent with that given by other witnesses.(e) Whether non-advantageous concessions were freely tendered.Complainant A[49] Complainant A gave evidence in respect of particulars and sub-particularsarising out of separate consultations in June 2011 and August 2014.[50] Mr Stevens cited 19 instances of inconsistencies, inadequacies or allegedacknowledgements of lack of recollection or other indication of unreliability from adetailed analysis of complainant A's evidence. Mr Stevens raised virtually all of themwith the Tribunal and part of his criticism is that the Tribunal's decision dealt withonly two of these points. Mr Stevens submitted that, at least when assessedcumulatively, the list demonstrated the lack of credibility of complainant A to an extentthat the Tribunal ought to have found that her evidence did not make out the critical14 As cited in Emmerson v A Professional Conduct Committee appointed by the Medical Council ofNew Zealand, above n 5, at [77]. See R v Bertrand (1867) LR 1 PC 520 at 535 per Sir JohnColeridge.15 Rabih v Professional Conduct Committee [2015] NZHC 1110, [2015] NZAR 1102.16 At [40].components of the particulars of the charge that related to her consultations with theappellant.[51] Mr Stevens cross-examined complainant A extensively and very closely at thehearing. From the tenor of her replies, I incline to the view that she probably did notanticipate being questioned in such close detail on the circumstances of the twoconsultations in question. On many peripheral details, she was certainly unclear oruncertain. She seems to have been prepared to make concessions that her originalrecollection may have been wrong when confronted with evidence to the contrary, butwas firm on the matters of most importance to her. I am satisfied that the Tribunal wasentitled to draw that distinction between the reliability and credibility of her evidenceon critical matters, and the lesser standard reflected in her answers on peripheralmatters.[52] The Tribunal made separate assessments of components of her evidence thatwere the foundation for a number of sub-particulars of the particulars of the chargewhich related to her consultations. The Tribunal found the following aspects ofcomplainant A's evidence not established on the balance of probability:(a) that the appellant did not use a privacy curtain to allow her to undressbefore the CBE, nor was there a modesty blanket available to her whileit occurred;17(b) that the appellant asked complainant A whether she had sex with herhusband in the context of a question as to whether her husbandexamined her breasts.18[53] From the appellant's perspective, these findings ought to have added weight tothe doubts over the credibility of the remainder of her evidence. The contrary view isthat these findings demonstrate the level of care taken in the Tribunal's analysis,providing a measure of assurance that its credibility findings were the subject ofthorough analysis.17 Tribunal decision at [210].18 Tribunal decision at [222].[54] Of the 19 challenges to the credibility findings about complainant A, themajority do fall within matters of relatively less material detail about which a witnessin such circumstances might reasonably be expected to be vague, and even on somesuch details, understandably mistaken. They do not raise a concern about bias bycomplainant A, nor any determination to exaggerate her criticisms to make thedisciplinary proceeding more difficult for the appellant. I am not persuaded that theTribunal erred in accepting complainant A's credibility on the features of theparticulars and sub-particulars found to be made out.Complainant B[55] Mr Stevens raised similar challenges to the credibility of complainant B beforethe Tribunal, and again on appeal. He cited 10 inconsistencies or inadequacies after asimilarly extensive cross-examination of this complainant.[56] Complainant B was 59 at the time of the consultation with the appellant in June2012. She went to see him about a sore throat at a time when her usual doctor was notavailable. On her recollection, after a brief discussion about her throat, the appellantasked if she examined her own breasts, and offered to give her a CBE then and there.Initially complainant B was reluctant. She acknowledged the importance ofmonitoring because a close relative had died of breast cancer at a relatively young age.After the appellant asked her about breast examinations some three or four times, sheagreed he could conduct a CBE.[57] Her complaint included that during the examination, with her sitting sidewayson a bed raised higher than a chair, and with the appellant with his hands on her breasts,he said to her "oh, you know that you're very attractive, don't you". Complainant B'sevidence was that she was already uneasy at this point of the consultation and herimmediate response was "I'm out of here". She then got up, dressed and left. Shemade an oral complaint to the receptionist at the medical centre as she left. Shedisputed the inclusion in the notes the appellant made of the consultation that achaperone had been declined and also disputed that the CBE had been "normal"because she did not consider that a proper breast examination had been conducted.[58] After the consultation, complainant B contacted the medical centre in October2017 and a written record was taken by the practice manager of the terms of hercomplaint. In evidence before the Tribunal, complainant B disputed a number of thedetails recorded in that note.[59] The appellant disputed that he would have made any comment to thecomplainant about her personal appearance whilst conducting a CBE. He also claimedthat the notation of a chaperone having been declined would not have been recordedin the notes unless that occurred.[60] The appellant also rejected complainant B's criticism that the CBE wasconducted other than in accordance with best practice, and he disputed thecircumstances in which she claimed the consultation ended with her suddenly dressingand leaving the surgery.[61] In evaluating the competing versions on this complainant's evidence, theTribunal considered that the appellant had been largely relying on his normal practicein such consultations, rather than having a specific memory of his particularinteractions with complainant B. In undertaking an analysis of specific sub-particularsof this particular of the charge, it found that some of the allegations had not been madeout. The Tribunal preferred the contemporaneous consultation notes where theyreferred to the appellant having offered a chaperone, over complainant B's recollectionthat a chaperone was not offered. Overall, however, the Tribunal was satisfied aboutthe credibility of complainant B's evidence. The Tribunal preferred the complainant'sdescription of how the CBE occurred, rather than the appellant's description of howhe would have undertaken it.[62] My reasoning on this challenge to the Tribunal's ruling acceptingcomplainant B as a credible witness is similar to that for complainant A. There aredifferences of recollection between her evidence, and the details as recorded in the2017 interview with the practice manager, and as to the precise detail in which thesequence of events occurred. As with complainant A, however, complainant B appearsto have withstood a rigorous cross-examination, being unmoved on the elements ofher complaint that were most important to her. Accordingly, I can find no ground forupsetting the Tribunal's factual findings as to her credibility.Failures to make adequate notes of consultations[63] The sub-particulars of the charge relating to five of the complainants includedthat the appellant had not recorded material aspects of the respective consultationswith those complainants in the patients' notes. There was no contest over the absenceof relevant records. The appellant offered somewhat inconsistent explanations, at leastin respect of one of the omissions, in his initial interview and then in evidence beforethe Tribunal.[64] The appellant's fourth ground of appeal was that the Tribunal found theomissions in two cases to merely be negligence, two to be negligence bringingdiscredit to the profession, and two to be malpractice and conduct that broughtdiscredit to the profession. Without reasons for ranking the consequences of suchomissions differently, Mr Stevens submitted that there was an absence of consistencyand generally an over-reaction to what should have been accepted as oversights. Hesubmitted that the failure to keep sufficient patient notes of consultations could notconstitute either malpractice or conduct bringing discredit to the profession.[65] In defending the Tribunal's findings, Ms Miller cited the Court'sacknowledgement in an earlier appeal that "meticulous record-keeping is afundamental obligation of the practitioner".19 The omissions breached the standardrequired by the MCNZ's standard for maintenance and retention of patient records.On the relative importance of recording a CBE, the Tribunal had expert evidence fromProfessor Arroll that the fact that a CBE had been done should be recorded in apatient's notes. In effect, it is an activity that ought to be recorded so that otherpractitioners know when CBEs have taken place and any abnormal findings should becommented upon, again for subsequent monitoring.[66] However, Professor Arroll and other practitioner witnesses accepted in theirevidence that important topics can get left out of the consultation notes made by19 J v Director of Proceedings HC Auckland CIV-2006-040-2188, 17 October 2006, at [63].general practitioners. Dr Taylor, called for the appellant, said that she would counselclear documentation by practitioners undertaking CBEs "in order to protect the healthprofessional".[67] Ms Miller submitted that attempting to dismiss the omission to record CBEsand recommendations that patients undertake breast self-examinations as mereoversight was inconsistent with the importance the appellant consistently attributed toproactively raising such matters routinely with female patients.[68] The Tribunal's different rankings of the disciplinary consequences of suchomissions need to be read in the context of the Tribunal's analysis of the particulars inrespect of each complainant. The conduct of the appellant in relation to two patientswhere he failed to record a CBE did warrant a disciplinary response. The second ofthose, complainant H, occurred in May 2017, after the appellant had provided a writtenundertaking not to do that. Both women were patients of other doctors, and theappellant was undertaking an activity that he knew did not accord with recommendedpractice. The Tribunal was entitled to treat those omissions as significant, irrespectiveof any explanation for them.[69] There is scope for treating the omissions to record discussions in which theappellant recommended breast self-examination, and raised other concerns aboutmonitoring women's breast health, as arguably less serious. Nonetheless, the appellantwas still encroaching on a topic when uninvited that was inconsistent with the practiceof his colleagues and with MCNZ standards. As he was doing so with other doctors'patients, it was important that a record be maintained of it. The relative importance ofthe omission might legitimately be seen by the Tribunal as fluctuating, depending onthe other circumstances of the consultation with particular complainants.[70] This reasoning also applies to the appellant's failure to note the discussion ofsexual matters with complainant F. Given her age and the subject matter traversed,even on the appellant's competing version of the consultation, the discussion heinitiated on sexual matters assumed an importance that ought to have been recordedfor the benefit of other doctors and (adopting the observation of Dr Taylor) for theappellant's own protection.[71] I do not accept there was any error in the differential consequences asdetermined by the Tribunal. I agree that at least cumulatively these omissions in thecircumstances in which they arose warranted a disciplinary response.[72] In oral submissions, Mr Stevens emphasised his written submission that theTribunal had ranked the appellant's omissions to make adequate notes of consultationsmore seriously than was warranted by analogy with the reasoning in A v A ProfessionalConduct Committee.20 In that case, Simon France J treated "poor note keeping ofcertain events" and issuing prescriptions on the wrong forms as "not self-evidently ofsufficient seriousness to constitute conduct satisfying one of the three options underthe first stage".21[73] I am not persuaded that the circumstances in which criticisms were raised ofthe practitioner in that case are comparable to the circumstances in which materialmatters were not recorded in the present case.Challenges to factual findings on individual complaints[74] The fifth to thirteenth grounds of appeal all related to specific findings onindividual sub-particulars of the charge arising from the individual complaints.Complainant A[75] The fifth ground of appeal related to the Tribunal's findings on the appellant'sconduct during his June 2011 consultation with complainant A. An element of thecomplaint was that the appellant had initiated dialogue about breast examinations inthe presence of complainant A's six year old son, even although the reason forcomplainant A's visit related to intestinal issues her son was experiencing.[76] The Tribunal found that the appellant was not sensitive to disquiet thatcomplainant A may have been feeling about discussing the topic in front of her son.He had raised the topic with her when it was not clinically justified, and in a mannerthat caused discomfort to an extent that the patient shortly thereafter made a complaint20 A v A Professional Conduct Committee [2018] NZHC 1623.21 At [36].to the practice manager. The Tribunal held that it could not find as a matter of factthat the six year old son who remained in the room was distracted by playing withtoys. The Tribunal found the conduct to amount to malpractice that brought discreditto his profession. On its own, the Tribunal did not consider this conduct warranteddisciplinary sanction but, cumulatively with other particulars, it did.[77] Mr Stevens cited complainant A's acceptance during cross-examination thatshe did not have a particularly clear recollection of the 2011 consultation. She alsoagreed that her six year old son was distracted by playing with toys during thediscussion about her breast health, and that even if he had focused on the conversationit was most likely that he would have been too young to understand what was beingdiscussed. There was no evidence that complainant A told the appellant during theconsultation that she was uncomfortable discussing this subject in the presence of herson and, in the absence of such a communication, Mr Stevens submitted that theTribunal had unfairly criticised the appellant for not being sensitive to her disquiet.[78] In addition, an experienced practice nurse familiar with the appellant's workhabits considered it appropriate for him to seize such opportunities to raise matterssuch as breast screening and tests. In her view, patients "almost always appreciatedthis proactive approach".[79] The PCC referred to the appellant's acknowledgements in cross-examinationthat it was not necessary to raise breast health with complainant A at the time, and thatit had been inappropriate for him to do so. In such circumstances, the Tribunal'sfinding was justified, given the extent to which this conduct deviated from the requiredstandards for general practice. Ms Miller submitted there could be no criticism of thefinding that, whilst on its own it did not warrant disciplinary sanction, as a componentof a course of conduct, it could cumulatively be taken into account in imposingdisciplinary sanction.[80] Given the evidence on the point, it would have been open to the Tribunal tomake the finding that the complainant's son had been distracted during the relevantconversation. However, I am not persuaded that its declining to do so was material toits overall assessment of this particular of the charge. As the first in time of theconsultations giving rise to relevant complaints, it is tenable for the appellant to arguethat the matter ought to have been treated less seriously than the Tribunal did.However, it was in breach of the required standards. In the later consultations, theappellant persisted with an approach of initiating discussions and examinations thatwere entirely unrelated to the health concerns bringing the respective patients to him.Accordingly, I can find no error in the Tribunal having regard to this first instance asadding in an incremental way to the justification for disciplinary sanction when theparticulars of the charge made out by the PCC were assessed cumulatively.Complainant E[81] The sixth ground of appeal relates to the Tribunal's findings in respect ofcomplainant E. The Tribunal accepted this complainant's version that she had seenthe appellant (not her regular doctor) for an urgent consultation in March 2015 becauseshe was suffering from diarrhoea and a urinary tract infection. It appears the majorityof the consultation was taken up with the patient's breast health, that having beenraised by the appellant because the complainant's patient records showed that she hada lump removed from her breast in 2013 and she was taking the oral contraceptive pill.The appellant treated that as relevant to the level of risk of breast cancer that she maybe exposed to. The Tribunal found that the appellant offered to perform a CBE andthat this constituted malpractice and conduct bringing discredit to the profession.[82] On appeal, Mr Stevens challenged the evidentiary basis for a finding that theappellant had offered to undertake a CBE. The complainant's evidence was that thedoctor talked to her about "how I should have a doctor examine me", and that whilehe "didn't straight out ask to do a breast examination, he was telling me what I'should' be getting done". The PCC supports the implication drawn by the Tribunalthat the complainant reasonably understood the appellant to be expressing awillingness to perform such an examination if the patient accepted his advice.[83] This was in the context of a consultation where the complainant recalled thatshe was: acutely unwell, not with my regular GP, an unnecessary conversation tobring up to a patient who was quite obviously aware of their breast healthbecause they had had specialist involvement.[84] I do not accept there was any insufficiency of evidence for the Tribunal to makethe finding that the appellant was indeed offering to conduct a CBE on the patientduring the consultation. His questioning on the topic included requesting that shedemonstrate (whilst clothed) how she examined her own breasts. Her clearrecollection of the implications of what the appellant was urging on her, incircumstances of the power imbalance existing between doctor and patient, render itsomewhat unrealistic for the appellant to rely on the lack of evidence of an offer inexplicit terms to conduct a CBE in the context of a consultation, most aspects of whichhe did not dispute. The context similarly means that just because the complainant didnot verbally communicate that she did not wish to continue with the breast healthconversation cannot avail the appellant to dismiss this conduct as an error in judgementfalling short of malpractice.Complainant G[85] The seventh ground of appeal was that the Tribunal had erred in treating theconduct complained of by complainant G as amounting to misconduct. Thiscomplainant saw the appellant in May 2016 about her asthmatic condition, and wasaccompanied by her 14 year old daughter. The complainant's evidence was that, afteraddressing her concerns about her asthma, she was asked about breast examinationsthree or four times after she first said no, that the appellant "just wouldn't take no foran answer" and that she had been emphatic in rejecting his further attempt to discussthe topic after her daughter had been excluded from the room. After her daughter hadreturned to the room, the topic was raised by the appellant again.[86] The patient records suggested that the complainant had not had a breast checkfor quite a few years, so the appellant considered it necessary to emphasise to her theimportance of breast health. On appeal, Mr Stevens conceded that with hindsight theappellant had failed to pick up the complainant's reluctance to discuss the issue. Withrespect, that is something of an understatement. I accept the PCC's submission on thisground of challenge that the appellant had persisted with the topic to an extent thatraises the spectre of harassment and certainly fails to respect the patient's autonomy,with the appellant appearing to be oblivious to the power imbalance between doctorand patient.[87] I do not accept there was any error in the Tribunal ranking this as an instanceof professional misconduct.Complainant H[88] The eighth to eleventh grounds of appeal arise out of the appellant's May 2017consultation with complainant H. The consultation was in the evening, thecomplainant having requested a repeat prescription and her regular doctor not beingavailable. The complainant had had a mammogram the previous year, although theappellant made the point that it was approximately six months later than at therecommended two yearly interval. The appellant raised matters of breast health withcomplainant H and, without offering a chaperone, conducted a CBE. During theexamination, the appellant commented "for your age, they're quite full". She did notthink it was right for him to make such a comment. On leaving the consulting room,she found the reception area in darkness and no one else in attendance.[89] During the consultation, the appellant had also offered to perform a cervicalsmear. She commented that she usually got a text reminder when she was due for asmear test, but had not received one. She declined because she always had a nursepresent. No record was made in the notes of conducting a CBE or offering to conducta cervical smear.[90] This complaint followed approximately one year after the appellant hadaddressed concerns raised with him by those managing the practice about his initiatingmatters of breast health with female patients during consultations arranged for othermatters. That had resulted in the written undertaking given to the practice by theappellant in June 2016 that he would utterly avoid raising the issue of breast healthunless the matter was raised by the patient herself. That undertaking was subject toan exception in cases where there was a clear or plain clinical indication, in whichevent the appellant undertook to "tread very carefully making quite sure the patientwas wanting to review that issue".[91] The Tribunal considered it constituted malpractice by the appellant to initiatea discussion about breast cancer prevention in breach of the undertaking he hadprovided to his employer. Although contested by the appellant, the Tribunal foundthat he had not offered for complainant H to have a chaperone present during the CBE.It also accepted the complainant's version of the comment by the appellant about herbreasts during the CBE, the Tribunal finding that to be malpractice bringing discreditto the profession. The appellant admitted that he had not recorded the CBE in thenotes of the consultation.[92] The first of the criticisms of these findings is that the appellant's discussion onbreast health and the conduct of the CBE should not have been treated as a breach ofthe undertaking. Rather, Mr Stevens argued that there was sufficient cause for it to beraised for it to come within the exception in the terms of the undertaking. If theexception did not apply, then the undertaking was expressed in unreasonable terms, towhich he should not be held.[93] The PCC pointed out that when this issue was initially raised with him, theappellant acknowledged that the conduct breached his undertaking. He wrote to thepartners of the practice on 7 June 2017 very shortly after the complainant had raisedthe issue, apologising in fulsome terms:I am also sorry to you, for having breached my written commitment to thepractice. There is no excuse for this. I am taking this very seriously and amwilling to comply with any further undertaking regarding these matters.[94] The appellant has subsequently disavowed both the terms of this apology, andthe 2016 undertaking on the basis that both arose out of advice he felt obliged tofollow, but which he has subsequently challenged. I am satisfied that the Tribunal wasentitled to reject arguments raised before it that his conduct had not amounted to abreach of the undertaking. Given the circumstances, there is no basis for thecontention that the Tribunal erred in finding the breach of the undertaking to bemalpractice.[95] The next criticism was of the Tribunal's characterisation of the appellant'sfailure to offer a chaperone as professional misconduct. Mr Stevens submitted that itwas a matter of inadvertence or oversight in circumstances where the appellant hadavoided raising breast health issues in the year since providing the undertaking.[96] Again, when this component of the particular in respect of complainant H isassessed in context, the failure to offer a chaperone was sufficiently serious to betreated by the Tribunal as professional misconduct.[97] On the finding that the appellant had made an inappropriate comment aboutcomplainant H's breasts during the CBE, Mr Stevens submitted that the Tribunalought to have assessed it differently and made a specific finding on the appellant'sexplanation. The appellant accepted, with hindsight, that he should have clarified whathe meant and, had he been asked at the time, would have explained that breasts inwomen over 50 tend to shrink. What he observed was dense tissue and fullness of thebreast which equates, in his view, to an increased risk of breast cancer. Mr Stevensargued that if the Tribunal had accepted the explanation, then the appellant's failure toadequately explain the comment that had caused offence could not correctly have beenranked as malpractice bringing discredit to the profession.[98] In responding for the PCC to this ground of appeal, Ms Miller submitted thatit was entirely improper for the appellant to seek to blame the complainant for apossible misunderstanding of the comment she found offensive. When the appellant'sexplanation was put to her in evidence, the complainant firmly rejected the prospectof a miscommunication.[99] The comment was unexpected, uttered whilst the complainant was especiallyvulnerable in an undressed state, and by a practitioner who is not her usual doctorduring an evening appointment. I agree with the PCC that the Tribunal was notrequired to treat this aspect of the complaint as less serious because complainant H didnot invite the appellant to clarify what he meant. The Tribunal did not err in thisrespect.[100] The Tribunal's findings on the particulars arising out of complainant H'scomplaint included criticism of the appellant for failing to appreciate, in light of thelateness of the hour, that other personnel were likely to be absent from the premises.That failure was separately found by the Tribunal to warrant disciplinary sanction "tomaintain standards in the profession and for protection of the public in similarcircumstances".22 That criticism was not raised by any of the detailed sub-particularsof the charge in relation to this complainant. It was therefore outside the bounds ofthe case the appellant had to answer. In addition, the criticism levelled at the appellantwas inconsistent with his uncontroverted evidence that he was unaware that all otherstaff had left the premises and was surprised and annoyed to discover this at the endof the consultation. The practice manager accepted that the departure of thereceptionist before the last consultation was finished was an administrative failing.[101] It follows that this criticism of the appellant by the Tribunal was not warrantedand ought not to have been included in its decision. I return to the relevance of thispart of this ground of the appeal being upheld at the end of my analysis of all thegrounds.Complainant F[102] The twelfth and thirteenth grounds of appeal challenged findings by theTribunal in respect of complainant F. At the time of the consultation in April 2015 shewas 15 years old and had requested an appointment about a throat infection.Sub-particulars of the charge alleged that the appellant asked the girl whether she wassexually active and whether she masturbated, as well as telling her to considermasturbation.[103] The appellant contends that the manner in which he broached the subject ofsexual intercourse with complainant F was not materially less sensitive than a modelapproach offered in expert evidence for the PCC. He was responding to a note of aprevious consultation by her regular doctor that she had felt compelled to have sex.On the appellant's view, it was purely a matter of style, and his manner being differentfrom the suggested approach could not be malpractice bringing discredit to theprofession. Whilst other doctors may have approached the topic somewhat moresensitively, that difference in style was not a basis for disciplinary action.[104] As to a discussion about masturbation, as complainant F claimed it hadoccurred, Mr Stevens submitted there were numerous indications of such inadequate22 Tribunal decision at [287].reliability of her recall about it that the Tribunal was wrong to reject the appellant'sdifferent explanation for the conversation. Arguably, it ought to have followed thatthe three sub-particulars about the discussion on masturbation could not have beenfound to be made out.[105] The PCC characterises complainant F's evidence as establishing that theappellant raised the prospect of her feeling compelled to have sex in an insensitive andconfronting way. Arguably, the appellant was not entitled to assume that the topic hadbeen dealt with in that direct way in the previous consultation with her regular doctor,from the terms of the note summarising that prior consultation. It might, for example,have been broached in an indirect or tangential way. On the PCC's analysis, theexample of how the topic might be broached that had been given in evidence byProfessor Arroll was markedly different and justified the adverse finding of theTribunal.[106] As to the competing versions on the discussion about masturbation, the PCCrejected Mr Stevens' criticisms of the reliability of the complainant, and submitted thatshe had provided a credible and reliable narrative for her recollection of the terms inwhich that discussion occurred.[107] The appellant's challenge to the Tribunal's finding against him on how heraised the complainant's sexual experience suggests a lack of understanding of theappropriate boundaries for initiating discussion with a 15 year old girl who was nothis patient. Her first complaint (as conveyed the same evening by her mother) and theterms of her evidence to the Tribunal make it very clear that the subject was raised byhim quite inappropriately, unnecessarily, and in a way that he should have appreciatedwould offend and likely alienate the patient. There was ample justification for theTribunal's decision that disciplinary consequences should follow.[108] Mr Stevens somewhat overstates the extent to which complainant F wasuncertain or unclear about matters when he cross-examined her. Certainly, thetranscript records that she was clear about the sequence in which the appellantquestioned her about previous sexual experience, and about there being positivereasons to consider masturbation. Perhaps the most qualified of her recollections waswhen Mr Stevens asked her whether the appellant had said to her that masturbation isthe better option than having casual sex, to which she replied:I don't know whether he said it in those exact words but that was what wasimplied.[109] Mr Stevens questioned the reliability of complainant F's narrative in evidenceby contrasting it with the different version she dictated to her mother, for her motherto write an email of complaint to the practice on the night of the appointment. In themother's narrative, she attributed to the appellant: pleasure yourself instead of doing what you did last time (or somethingalong those lines).[110] I do not accept that the different terms in which the complainant's motherelected to record the appellant's comments casts doubt on the complainant's reliability.Given the circumstances of embarrassment for a 15 year old recounting the events onthe same day to her mother, knowing her mother is recording them for acommunication to the doctor's practice, a somewhat different expression of the termsis readily understandable.[111] I am not persuaded that the Tribunal made any error in finding the three sub-particulars about the appellant's discussion with complainant F about masturbationwere made out.Professional misconduct not made out[112] The fourteenth ground of the appeal was that the Tribunal had erred in findingthat the extent to which the complaints were made out constituted professionalmisconduct by the appellant. Mr Stevens urged that must be so by a correct applicationof the legal standard, as considered in previous decisions. Arguably, if the correctstandard was applied, then the conduct criticised was not serious enough to sustain afinding of professional misconduct.[113] Mr Stevens submitted that the evidence failed to establish that any acts oromissions were malpractice or negligence or brought discredit to the profession andamounted to professional misconduct by virtue of being significant enough to warrantdisciplinary sanction. None of the appellant's conduct could be described as "seriousconduct", falling seriously short of that considered acceptable, and thus significantenough to warrant disciplinary sanction. Even if there was no clinical justification forraising breast health issues or performing CBEs, the appellant's actions would not,given the reasons for his conduct and the body of opinion that supported his actions,amount to serious conduct falling seriously short.[114] Mr Stevens drew on an observation in Williams v A Professional ConductCommittee of the Medical Council, where Wylie J emphasised that a finding ofprofessional misconduct "is a significant matter, which is reserved only for seriousconduct".23 Conversely, Ms Miller referred to the observations of Courtney J inMartin v Director of Proceedings:24 While the criteria of "significant enough to warrant sanction" connotes anotable departure from acceptable standards, it does not carry any implicationas to the degree of seriousness. Given the wide range of conduct that mightattract sanction, from relatively low-level misconduct to misconduct of themost reprehensible kind, the threshold should not be regarded as unduly high.[115] The parties to the appeal were agreed on the well-established two-step processfor assessing whether conduct in issue constitutes professional misconduct. There isfirst to be an objective assessment of whether the practitioner departed from acceptableprofessional standards. Secondly, whether that departure was significant enough toattract sanction for the purposes of protecting the public.25[116] Mr Stevens urged the adoption of the approach of Kirby P in Pillai v Messiter[No 2], which suggests that more is required than professional incompetence ordeficiencies in practice.26 However, that approach was rejected by Courtney J inMartin, with her Honour's decision being adopted by Moore J in Johns v Director ofProceedings, who considered that in the New Zealand paradigm the test from Pillaiwas too onerous.2723 Williams v A Professional Conduct Committee [2018] NZHC 2472 at [36].24 Martin v Director of Proceedings [2010] NZAR 333 at [32].25 H v Director of Proceedings [2018] NZHC 2175 at [19] (reflecting the approach in McKenzie vMedical Practitioners Disciplinary Tribunal [2004] NZAR 47 (HC) at [71].26 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 (NSWCA).27 Johns v Director of Proceedings, above n 5, at [82].[117] In rejecting the criteria in Pillai as incorrectly constraining the Tribunal'sassessment, Courtney J in Martin observed that to identify the threshold fordisciplinary action it is essential to recognise the assessment is one of degree. Thegravity of the misconduct should be reflected in the penalty rather than in the actualfinding of professional misconduct.[118] Given the number of judicial descriptions of the task, I content myself withadopting that of Moore J in Johns:28[83] As Courtney J observed, given the wider range of conduct whichmight attract sanction in this jurisdiction the threshold should not set undulyhigh. It is a threshold to be reached with care having regard to the purposesof the Act and the implications for the practitioner. Consistent with Ms Wills'submission the measure of seriousness is to be reflected in penalty.Furthermore, as Courtney J noted, the task for the Tribunal must first be toconsider whether the practitioner has departed from the acceptable standardrequired of a professional in the circumstances. What that standard is will bedetermined by reference to the conduct of other competent and responsiblepractitioners and the Tribunal's own assessment of what is appropriateconduct assessed against the purposes of the Act. If the Tribunal is satisfiedthat the practitioner has departed from the standard expected it must thenconsider whether the departure is significant enough to warrant sanction.[85] So, while I agree that Martin is the correct approach, Ms Wills'submission that considerations of gravity and seriousness do not form part ofthe threshold inquiry cannot be correct. Those considerations form part of thethreshold inquiry but only to the extent required to ascertain whether thebreach is of sufficient importance to merit recording a finding of professionalmisconduct against the practitioner. If the threshold is met, then a morerigorous examination of gravity and seriousness is required in the assessmentof the appropriate penalty.[119] Ms Miller made two further points about the two-step test. First, that theassessment is an objective one by comparison with appropriate professional standards,with no scope to have regard to subjective explanations for the conduct by theprofessional involved. That was the view taken by Venning J in McKenzie v MedicalPractitioners Disciplinary Tribunal.29 Mr Stevens submitted that there has beenqualification to that approach in E v Director of Proceedings, where Ronald Young Jobserved:3028 Footnotes omitted.29 McKenzie v Medical Practitioners Disciplinary Tribunal, above n 25, at [71].30 E v Director of Proceedings (2008) 18 PRNZ 1003.[24] Counsel agree that once the Tribunal have found the relevant factsthen the decision as to whether a doctor's actions are negligent or malpracticeis an objective assessment. Counsel differed, however, as to whether theTribunal can take into account the personal circumstances and knowledge ofthe appellant in deciding whether it is satisfied the practitioner's actions justifya disciplinary sanction. As the quote from McKenzie in the Tribunal'sjudgment illustrates, Venning J's view was that subjective considerations ofthe personal circumstances or knowledge of the practitioner had no part toplay in this second assessment.[25] I would not be prepared to go quite so far as Venning J. I considerthere may be personal circumstances which substantially affect theseriousness of the particular negligence or malpractice which are thereforerelevant to the decision as to whether a disciplinary sanction is required. Afailure to consider these in appropriate circumstances could constitute a failureto take into account a relevant consideration.[26] It is open to the Tribunal to conclude a practitioner has been negligentbut conclude, given the explanation received from the practitioner, that thenegligence (or malpractice) is not sufficiently serious to justify disciplinaryintervention.[120] I accept that in the context Ronald Young J was contemplating, a practitioner'sexplanation for conduct may be relevant to ranking its relative seriousness. However,I am not persuaded in the present circumstances that the appellant's belief in anapproach that was clearly contrary to current practice, and where he persisted over aperiod of years despite warnings that it was not acceptable, constitutes the type ofsubjective considerations that might influence the relative seriousness attributed to theconduct.[121] Ms Miller's second point was that the particulars of the charge were alleged toamount to professional misconduct either separately or cumulatively, and it isappropriate to weigh the character of the conduct cumulatively to assess whether thetotality of the conduct constitutes professional misconduct.31 In the summary of itsconclusions on individual particulars of the charge, the Tribunal observed:32There are several aspects that separately require disciplinary sanction, severalthat cumulatively require that sanction, and several that have been found notto be made out.31 Citing the approach of Simon France J in Vatsyayann v Professional Conduct CommitteeHC Wellington CIV-2009-485-259, 14 August 2009 at [75]–[82].32 Tribunal decision at [308].[122] In dealing with the thorough challenges to the vast majority of the individualfindings, I have held that the Tribunal's findings were, in all but one particular,justified. In measuring those findings against the two-step standard, I am satisfied thatthey are both sufficiently serious to warrant disciplinary sanction individually, andinarguably that all of the particulars that are made out also warrant disciplinarysanction when assessed cumulatively.[123] Turning to the application of the two-step standard more generally, andbeginning with the first step, I note that the charge arose out of a course of relativelydetermined conduct by the appellant over a period of six years. During the vastmajority of that time he was on notice that his practice of initiating conversations onbreast health and conducting CBEs, when the topic was unrelated to the medicalconcerns about which the patients were being seen, was contrary to the New Zealandstandards governing his practice. It was also contrary to the standards adopted by themedical practice for which the appellant was working. Therefore I consider thatobjectively the appellant's actions were a departure from acceptable professionalstandards.[124] Turning to the second step, I note that the appellant's actions led to complaintsfrom eight patients of other doctors in the practice and that he persisted (in oneinstance) with his conduct, contrary to proper practice and after undertaking to desistfrom it. Therefore I am satisfied that the departures from acceptable standards arecertainly more than serious enough to warrant a finding of professional misconduct.That threshold was clearly reached. Accordingly, I agree with the Tribunal thatprofessional misconduct was made out.Misapplication of s 100(1)(a) and (b) of the Act[125] The fifteenth ground of appeal is that the Tribunal interpreted incorrectly theconduct which might constitute professional misconduct under s 100(1)(b) of the Act.Arguably, the Tribunal wrongly conflated conduct as if it could constitute professionalmisconduct under both s 100(1)(a) and (b) on numerous of the particulars and sub-particulars of the charge.33 Mr Stevens argued that the analysis erred because33 Those provisions are set out at [12] above.s 100(1)(a) and (b) are to be interpreted as addressing distinct and discrete forms ofconduct.[126] Mr Stevens relied on the analysis of s 100 by Courtney J in Martin where theJudge undertook an analysis of the component concepts of "professional" and"misconduct". In dealing with the notion of what was professional, Courtney Jconsidered the interpretation of a previous statutory regime by McGechan J in Cullenv The Preliminary Proceedings Committee.34 Courtney J reasoned:35[18] In the context of the [current act], however, McGechan J'sinterpretation of professional misconduct cannot apply. It is clear from thedefinition of "scope of practice" that only s 100(1)(a) is intended to relate onlyto conduct that is part of the conduct of the practitioner's profession. Underthe previous schemes such conduct could have been reflected in any of thethree charges depending on the gravity of the conduct. In comparison, s100(1)(b) is clearly directed towards misconduct outside the scope ofprofessional practice, which would previously have been reflected only in acharge of conduct unbecoming. On McGechan J's interpretation"professional" would be otiose in s 100(1)(b).[19] The only reasonable interpretation of s 100(1)(a) and (b) is to treat"professional" as meaning (contrary to McGechan J's interpretation) a personwho practises a profession. Interpreting the word in this way would beconsistent with the defined terms of "practise a profession" and "healthprofession" in s 5(1). It would also accommodate the obvious distinctionintended between misconduct in the course of professional practice ins 100(1)(a) and misconduct outside the scope of professional practice ins 100(1)(b). I therefore conclude that "professional misconduct" ins 100(1)(a) and (b) means unacceptable or improper behaviour by a personwho practises a profession, as that phrase is defined in s 5(1).[127] Mr Stevens applied this reasoning to argue that if the conduct of a practitionerarose in the scope of his or her practice, then professional misconduct could only bemade out under s 100(1)(a). Mutually exclusively, if the alleged misconduct arose ina context outside the practitioner's practice, then such conduct could only constitutemisconduct under s 100(1)(b). Mr Stevens submitted that the mutual exclusivity ofparas (a) and (b) was supported by the Court of Appeal's analysis in F v The MedicalPractitioners Disciplinary Tribunal.36 However, that appeal concerned the provisionsof the Medical Practitioners Act 1995 and in particular the concept of conduct34 Cullen v The Preliminary Proceedings Committee HC Wellington AP225/92, 15 August 1994.35 Martin v Director of Proceedings, above n 23 (footnotes omitted). The definition referred to of"scope of practice" is in s 5(1) of the Act.36 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA) at [59], [60], [67]–[71].unbecoming which does not feature in the present Act. The reasoning is therefore nothelpful.[128] Ms Miller invited the analysis in Martin to be considered in light of theapproach of Whata J in Vohora v A Professional Conduct Committee.37 In that appeal,a pharmacist had been charged with misconduct either under s 100(1)(a) or, in thealternative, under s 100(1)(b). Mr Vohora challenged findings of misconduct madeagainst him under both subsections when he had defended the case on the basis that itwould be one or the other. Whata J accepted that was procedurally irregular. TheJudge then found:38[79] But I am not concerned about mixing and matching of the elements ofthe alleged misconduct for the purposes of the s 100 evaluations. I agree withMr McClelland that the Tribunal enunciated the thresholds for each subsectionand then applied them. I also consider that the conduct was amenable tofindings under both subsections. Mr Vohora was engaged in a principledprotest, directly challenging the policy of the Pharmacy Council to requireSOPS. It was designed to discredit that policy and therefore the Council. Itis not difficult to see why a charge under s 100(l)(b) was therefore appropriate.Furthermore Mr Withnall's complaint that the particulars A, B and C must fallunder one or other category of professional misconduct with respect conflates"cause" and "effect". The cause of complaint may well relate to professionalconduct within the scope of practice. The effect may nevertheless bring theprofession into disrepute. Plainly the two types of misconduct are notco-extensive. But the critical issue is whether the conduct amounts tomalpractice and/or brings the profession into disrepute. While no clear line isdrawn by the Tribunal between the reasons for the respective findings unders 100(l)(a) and (b), I am satisfied that the decision identifies reasons forreaching its view that both thresholds are met. I therefore see no substantiveerror in this regard.[129] I am not satisfied that the distinction drawn by Courtney J in the circumstancesin Martin is necessarily inconsistent with the approach to s 100(1)(a) and (b) adoptedby Whata J in Vohora. In any event, as the challenge arises in this case, I agree withthe approach adopted by Whata J. In various contexts, conduct by a medialpractitioner arising as part of his or her practice might justify a finding of misconductunder both heads. The Tribunal must deal with charges on the precise terms in whichthey have been laid, but where (as here) the misconduct is alleged to constitute suchunder either or both of (a) and (b), it is open to the Tribunal to consider the conduct asconstituting professional misconduct under either or both paragraphs.37 Vohora v A Professional Conduct Committee [2012] NZHC 507, [2012] 2 NZLR 668.38 Footnotes omitted.[130] The breadth of s 100(1)(b) means that a health practitioner cannot avoid theprospect of disciplinary proceedings for conduct arising outside his or her practice, butthat does not mean that s 100(1)(b) will not apply in appropriate cases where themisconduct does arise within the practitioner's sphere of practice. The principalpurpose of the Act is to protect the health and safety of members of the public byproviding for mechanisms to ensure that health practitioners are competent and fit topractise their professions.39 An example cited by Ms Miller was Williams, where theconduct of the doctor in question involved the prescribing of a certain drug to relevantpatients which was appropriately seen as bringing discredit to the medicalprofession.40[131] The appellant cannot make out any error in the manner in which the Tribunalhas applied the provisions in s 100(1)(a) and (b).Cultural differences and language issues[132] The sixteenth ground of appeal was that the Tribunal ought to have taken intoaccount cultural differences, and the fact that the appellant speaks English as a secondlanguage, with a heavy accent. The appellant and his wife gave evidence of culturaldifferences between life and the working conditions of a general practitioner in Israel,and the culture they have encountered in New Zealand. The appellant argued it wasrelevant that Israelis are forthright to the point of bluntness in their communications.Mr Stevens submitted that, given his background, the appellant could reasonablyexpect that any of the complainants who found his approach inappropriate would havesaid so directly, and straight away. In a number of the particulars where criticismswere of the appellant continuing to raise matters about breast health, the suggestionwas that the appellant ought to be excused for not appreciating more subtle signals.[133] A second difference raised by the appellant before the Tribunal was the positionof a family doctor in dealings with all members of a family group in Israel. Theappellant's contention was that general practitioners in Israel are expected to initiate39 Health Practitioners Competence Assurance Act 2003, s 3(1).40 Williams v A Professional Conduct Committee, above n 23, at [102].discussion with patients about medical issues that the patient might have difficultytalking about, and to provide advice on them.[134] The Tribunal acknowledged these points in the evidence, and commented thatall such evidence came only from the appellant and his wife.41[135] It was not entirely clear what different approach Mr Stevens contended theTribunal should have adopted to take account of these cultural differences, assumingit ought to have accepted the extent of them as described by the appellant and his wife.The complaints were to be assessed by reference to the standards of reasonablycompetent practitioners in New Zealand, dealing with New Zealand patients. Theconduct complained of is to be measured by the Tribunal against what it perceives tobe reasonable standards of competence and behaviour by other New Zealandpractitioners in similar circumstances.[136] I did not take Mr Stevens to contend that patients consulting with the appellantshould have expected lower or different standards than would have applied had theyseen their regular doctors, on account of the appellant's cultural differences. Certainly,the obligations he assumed on registration in New Zealand from 2009 were to providecompetent advice by reference to New Zealand standards. Far from expecting patientsto make allowances for a doctor's different cultural norms, the obligations assumed onregistration require a doctor to be sensitive to patients' different cultural values.42 Iaccordingly can see no scope for criticism of the Tribunal in not taking into accountcultural differences when assessing whether the particulars of the charge were madeout.[137] A theme of the evidence of a number of the complainants was relatively howassertive the appellant was in controlling their consultations. Although the appellantdid not accept that this reflected an attitude of "doctor knows best", the Tribunal wasentitled to find that his manner was inconsistent with respect for patient autonomy thatis a feature of guidelines to practice in New Zealand but antithetical to what theappellant described as the Israeli approach.41 Tribunal decision at [99].42 See the MCNZ statement on cultural competence (August 2006).[138] To the extent that these cultural differences might explain the extent to whichthe appellant conducted consultations differently from standards reasonably expectedof New Zealand practitioners, that factor might legitimately have some bearing on theextent of penalties that were appropriate. That is a factor to be borne in mind dealingwith other grounds of the appeal.[139] Suggestions put to at least two of the complainants that the appellant's heavyaccent or use of English might have contributed to communication difficulties ormisunderstandings were firmly rejected. By the time the Tribunal came to reach itsdecision, it had observed the appellant give evidence and contribute to other aspectsof the 10 day hearing. It had also heard evidence from others who observed hisconduct during the relevant period in practice. I am not satisfied that the Tribunalerred in not making concessions to the appellant on account of any inadequacy in hisfamiliarity with English or the ability to be understood when communicating in it.Name suppression[140] The seventeenth ground of appeal is against the majority decision not to ordersuppression of the appellant's name. A minority of one of the Tribunal members wouldhave made an order for non-publication, being persuaded by the perceived extent ofadverse impacts on the appellant's adult children and his wife.[141] Section 95 of the Act provides that hearings of the Tribunal are to be held inpublic, unless it orders otherwise. The Tribunal's consideration of name suppressionis to have regard to the interests of any persons and to the public interest. As withprofessional disciplinary proceedings in other contexts, the presumption in favour ofopen justice and transparency creates something of a presumption against namesuppression.[142] This aspect of the Tribunal's decision was a matter of discretion and thepreponderance of views is that appeals from decisions on name suppression ought toadopt the approach in May v May,43 rather than that of a general appeal as prescribedin Austin, Nichols & Co Inc v Stichting Lodestar.44 Desirability of suppression of apractitioner's name reflects a materially lower test than other contexts where thepresumption of open justice can only be overridden if exceptional adverseconsequences would follow.45[143] The overall rationale of such disciplinary proceedings is to protect the healthand safety of members of the public by ensuring the competence of those practisingas health professionals. Every case will depend on its own circumstances and thenature of the conduct found to warrant disciplinary proceedings, including the relativerisk of some repetition of it, is a material consideration. Given the terms on which theappellant sought to justify his conduct before the Tribunal, and the repetition of thevast majority of the same arguments on appeal, the prospect of further conduct of asimilar type raises a concern that the public should know of the Tribunal's decisionabout the conduct complained of.[144] I am mindful that the conditions imposed by the Tribunal, which will remainin effect until April 2023, include the requirement for the appellant to have a femalechaperone present when seeing female patients for any breast examination, and thatnotices are required in the waiting room and his consultation room at any place ofwork to inform patients of that requirement. Those are practical protections formembers of the public who engage with the appellant in that context. They do notaddress the legitimate interest the general public has in knowing of the Tribunal'sruling about this aspect of the appellant's practice.[145] The primary ground advanced for name suppression is the fear ofdisproportionate adverse consequences for members of the appellant's family. At thetime of the Tribunal hearing, he had two adult children at advanced stages of tertiarystudy, both related in different ways to the medical profession. The family name is anunusual one and the appellant argued that any publicity at all would link them to him.43 May v May (1982) 1 NZFLR 165 (CA) at [169], [170]. The approach was adopted, inter alia, inN v Professional Conduct Committee of the Medical Council [2013] NZHC 3405, [2014] NZAR350; McCaig v Professional Conduct Committee [2015] NZHC 3063 and Johns v Director ofProceedings, above n 5, at [159].44 Austin, Nichols & Co Inc v Stichting Lodestar, above n 4.45 Compare Johns v Director of Proceedings, above n 5, at [165], [166].He expressed fears that the children's career prospects would be unfairly prejudicedby adverse views of the children on account of the Tribunal's findings against him.[146] The appellant expressed similar concerns for his wife who works as a licensedimmigration consultant. The appellant perceives harm would be done to her businessreputation if there was publicity of the Tribunal's findings against him. The appellantalso deposed that the disciplinary proceedings have taken a substantial emotional andphysical toll on his wife. Mr Stevens cited Ang v Professional Conduct Committee asan example of the impact on immediate family resulting from a name suppressiondecision.46[147] Mr Stevens criticised the Tribunal's majority decision for showing a misplacedconfidence in the objectivity and thoroughness of reporting. The Tribunal assumedthat any publication would have to refer to the charge and its components, includingthe PCC position that there was no suggestion of sexual motivation in the behaviour,and acknowledging the appellant's reasons for acting the way he did. Assumingthorough and objective reporting in that way, the majority considered the public wouldthen be able to make its own assessment on an adequately informed basis.47[148] I accept this criticism. Sadly, there is a real risk that the newsworthy aspectsof the Tribunal decision could be dominated by the implied overtones of sexuallymotivated misconduct by a general practitioner. Given the detail of the experiencesof the complainants, a partially informed audience could well infer that an improperinterest in sexual matters or even sexual gratification was the motivation for theconduct. I do not share the Tribunal's optimism that all reporting of its decision wouldgive appropriate prominence to the PCC's acknowledgement that there was nosuggestion of sexual motivation in the appellant's behaviour. It is certainly to be hopedthat the Tribunal proceeding would be responsibly reported, but I accept it was wrongfor the Tribunal to rely on that being the case. The competing interests on suppressionof the appellant's name are to be assessed against the prospect that responsiblereporting may not occur.46 Ang v Professional Conduct Committee [2016] NZHC 2949 at [75].47 Tribunal decision at [364].[149] Whilst I have approached the challenge to this ruling by the Tribunal on a Mayv May basis, given the potentially material error it is preferable that I come to my ownview on whether the appellant's name should be suppressed.[150] Apart from the concern at the real prospect for inadequate or misleadingreporting, and the error by the majority of the Tribunal in rejecting such prospect, I donot find the grounds advanced by the appellant for a suppression order to becompelling. I consider he has overstated the risk of any material adverse consequencesfor his adult children in terms of their career prospects, and similarly in respect of hiswife's career. He and members of his immediate family are likely to have materiallevels of social embarrassment and dislocation but that is an ordinary incident ofadverse findings in disciplinary proceedings against any professional person.[151] Whether suppression is desirable therefore reflects a balance between theinterest of the public to be adequately informed of the circumstances giving rise tocomplaints and the Tribunal's findings in respect of them, and the chance that less thanfull and objective reporting risks a level of opprobrium for the appellant from aninsinuation that there was some improper motivation for his conduct, when the PCCand Tribunal have accepted that was not the case.[152] By a fine margin, I consider that the medical profession's interests in openjustice being reflected in its disciplinary proceedings prevails. As in most cases wheresuppression of the outcome of professional disciplinary proceedings is considered,non-publication runs the risk of others being wrongly implicated as the practitionerinvolved in such conduct. I am not persuaded that the outcome of the Tribunalproceeding is sufficient to deter the appellant in all circumstances from attempts topursue his approach to breast health in the future,48 and accordingly the priorityrequired to be given to protection of the public by publication of the outcome mustprevail.[153] Accordingly, the seventeenth ground of appeal challenging the refusal to grantname suppression cannot be made out.48 In introducing this appeal, Mr Stevens described the appellant's promotion of CBEs and his otheraspects of breast health as an alternative that remained a valid point of view.Imposition of unfair conditions[154] In the eighteenth ground of appeal, the appellant challenged what heconsidered to be unwarranted conditions imposed on his future practice. Theconditions included a requirement that he have a female chaperone present whenseeing female patients for any breast examination and that any chaperone must be aregistered health professional. The condition also stipulated that the chaperone was tobe provided at the appellant's cost, "with no additional cost to the practice for which[the appellant] is then working".[155] Mr Stevens submitted that this condition was an unwarranted interference inthe appellant's relationship with any employer, and that the Tribunal had no businessin influencing that aspect of the appellant's employment conditions.[156] In responding to that criticism, Ms Miller submitted that such conditionsaccord with a regular practice of the Tribunal, the reason for which is to makeabsolutely clear that costs associated with implementation of such conditions are notto fall on the profession.[157] If indeed that is the limit of the Tribunal's concern, the appellant mightreasonably expect the condition to be recast on terms that the cost of provision ofchaperones is a matter to be resolved between the appellant and his employers, and inno circumstances are such costs to be a charge on the profession.[158] The appellant also challenged the last of the conditions for practice that wereimposed by the Tribunal, namely that the appellant was to meet the reasonable costsof any random audit undertaken at the discretion of the MCNZ to ensure compliancewith conditions and any review of the notes about female patients who have undergonebreast examinations. Mr Stevens characterised this as a "potential instrument ofoppression". He submitted that a fair outcome was for the MCNZ to share someportion of the costs of such audits. That was roundly rejected by Ms Miller, whosubmitted there was no basis for suggesting it could be an instrument of oppression.She submitted that the condition was reasonably imposed and it ought not to be policedat the cost of the profession. I accept that view.[159] However, on the basis of the discussion at [157], I am persuaded that one aspectof the eighteenth ground of appeal is upheld and will return at the conclusion of thejudgment to describe how that ought to be reflected.Fine of $5,000 excessive?[160] The nineteenth ground of appeal was that the Tribunal's decision to impose afine of $5,000 was excessive. Mr Stevens' submissions addressed this point in tandemwith his challenge to the extent of the costs order made against the appellant wherethe total pecuniary cost to the appellant was many multiples of the fine. Hissubmissions were that, in effect, the fine could have been reduced to a de minimisamount given the punitive impact of costs orders of $160,000.[161] In separately responding on the challenge to the quantum of the fine, the PCCmade the following points:• the Tribunal's jurisdiction is to impose fines of up to $30,000;• fines range from $500 for minor offences through to $25,000 for cases ofserious misconduct;• appeals have been allowed where the Court perceives it necessary tomaintain proportionality, or because the fine was clearly out of line withcomparable decisions;49• other cases involving inappropriate or unnecessary physical examinationsthat were referred to the Tribunal involved fines ranging between $1,000to $5,000 where the scale of conduct here was more serious than in thoseothers.[162] Ms Miller submitted it was important that the quantum of the fine sent adeterrent signal. In this case, the appellant had persisted with his conduct contrary topractice standards known to him and otherwise respected by the practice for which he49 Harman v Director of Proceedings HC Auckland CIV-2007-404-3732, 12 March 2009 at [162],E v Director of Proceedings, above n 30, at [58].was working. He also persisted after providing the undertaking so that a material levelof fine was well justified.[163] On these considerations, I am readily satisfied that there is no error in theTribunal fixing the fine at $5,000.Challenges to the reasonableness of costs orders[164] In the twentieth ground of appeal, and one aspect of the twenty second groundof appeal, the appellant disputed the jurisdiction of the Tribunal to order costs of thetype that it did. Those jurisdictional challenges were not pursued.[165] The jurisdiction in respect of costs and expenses is included in s 101(1)(f) ofthe Act dealing with penalties.50[166] The Tribunal's decision included an extensive consideration of numerous lineby line challenges to the components of the costs, recovery of which the PCC soughtfor its investigation and the costs of the Tribunal hearing. There appears to besomething of a presumption in Tribunal jurisprudence that the starting point for a costsorder against a practitioner found guilty of professional misconduct is 50 per cent ofthe actual costs incurred.51 The Tribunal's decision was that the appellant was to paya total of $160,000, being 50 per cent of the total sum of $320,000, which the Tribunalhad reduced from total claims presented for its own costs and those of the PCC of$362,123. The final award divided the sum of $160,000 into $102,400 towards thecosts of the inquiry and $57,600 towards the costs of the Tribunal hearing. There wasno clear explanation for that somewhat disproportionate allocation of the appellant'sliability to contribute to 50 per cent of a rounded down total.[167] As a discretionary element of the Tribunal's decision, I incline to the view thatthe appellate approach in May v May ought to apply,52 but on the analysis I haveundertaken applying an Austin, Nichols standard would not alter the outcome.50 Set out in [13] above.51 Tribunal decision at [414]–[416], citing decisions including Vatsyayann v Professional ConductCommittee of New Zealand Medical Council [2012] NZHC 1138 at [34].52 See Johns v Director of Proceedings, above n 5, at [159].[168] In challenging the quantum, Mr Stevens' overarching challenge to what heclaimed was an unreasonable quantum was that the threat of such a significant liabilityfollowing from an unsuccessful attempt to defend disciplinary proceedings had aserious and unwarranted chilling effect on a practitioner's election to do so. Theweight of a professional juggernaut brought to bear on an individual arguably imposedunfair and improper pressure for practitioners to compromise charges to which theymight have a defence, for fear of the ruinous financial consequences should they fail.[169] As to the presumptive starting point of 50 per cent of costs incurred,Mr Stevens submitted the principled bases of the appellant's challenge to the medicalprofession's current approach to monitoring breast health reflected a matter of publicinterest that deserved to be aired. That factor should have been reflected in a reductionfrom the presumptive starting point. I do not accept that as a relevant considerationon quantum, given the duration and nature of his non-compliance.[170] Mr Stevens instanced the disproportionality of the cost of the procedure byreferring to the inclusion of such items as the cost of 70 lunches and 30 dinners forrelevant Tribunal participants over the 10 day hearing. Among other criticisms wasthat, from the details in the transcript, the hearing took a total of 54 sitting hours,whereas the charges claimed 80 hours for members' time.[171] Mr Vincent had filed written submissions responding to various argumentsdisputing the jurisdiction of the Tribunal to make costs orders against a practitionerfor various heads of cost that had been included. It became unnecessary for him toaddress those submissions once Mr Stevens abandoned the jurisdictional challenges.[172] Mr Vincent did respond on one aspect of the challenge to quantum of the costsclaimed for the executive officer who was allocated to the proceeding and wasresponsible for administrative and logistical arrangements. Mr Vincent described thestructure of the system supervised by MCNZ, which involves the allocation of anindividual executive officer to a proceeding, with the contemplation that if costs ordersare made, the cost of those services will be included among those sought to berecovered.[173] Mr Stevens did not seriously contest the jurisdiction of the Tribunal to quantifyand order recovery of costs of this type.53 On this and other aspects of the costs, detailsof which were provided, I am not in a position to challenge individual items in whatwas a relatively substantial undertaking. I expressed sympathy for the appellant'sconcern that he had been caught up in a juggernaut, but that is the regime as it exists.[174] Mr Stevens was also critical of the extent of costs of the PCC for which itsought 50 per cent recovery. This included an amount of almost $190,000 for legalcosts, for two counsel involved in prosecuting the case with a combined hourly rate of$595. Mr Stevens criticised the component of some $63,000 of the legal feecomponent, being recovery of costs of legal staff employed by the MCNZ.[175] The PCC's response was to the effect that the Tribunal approached costs orderson the basis that the costs of the disciplinary process to the profession ought to bealleviated to a relevant extent by members involved in the proceedings, where findingsof misconduct have resulted. The scale of the costs incurred in this case was areflection of the extent of the complaints, and particularly the extent to which theappellant elected to challenge virtually every component of every particular and sub-particular, and retained senior counsel to effectively leave no stone unturned.[176] As to the component of the PCC's legal fees incurred by MCNZ's employedlawyers, Ms Goodhew explained that those lawyers are funded on a basis that allocatestheir salary and overhead costs to specific investigations and prosecution ofdisciplinary proceedings to which they are assigned, as part of an overall cost structurewithin the MCNZ. That cost structure is not expected to be sustained entirely by theprofession, and is dependent on partial recovery where prosecutions end in anentitlement to an order for costs.[177] On that aspect of the costs, I acknowledge that in comparable circumstances incivil litigation, a successful party represented by its own employed solicitors will notbe entitled to a costs order as it would if external solicitors had been retained.54 I took53 The jurisdiction is derived from s 104 of the Act, which Mr Vincent distinguished from theallocation of liability for the Tribunal's general administration costs, provided for under s 103A,introduced with effect from 12 April 2019.54 McGuire v Secretary for Justice [2018] NZSC 116 at [55].Ms Goodhew's explanation to take the costing arrangements with her employer todistinguish them from that. In any event, the costs regime under the Act applying inthis case is expressed more broadly, and does not need to conform with costs rulesunder the High Court Rules 2016.[178] Mr Stevens submitted that the appellant was of relatively limited financialmeans and ought not be fixed with so substantial a liability as to reduce what arelimited prospects at his age (62) to rebuild a retirement fund. Ms Goodhew pointedout that the Tribunal had afforded the appellant time to provide an affidavit attachinga statement of his assets and liabilities, but he did not respond. She disputed that therewas evidence justifying any submission that he was of "very limited" financialcapacity.[179] The appellant did complete an affidavit on 17 December 2019 providing anunverified summary of his financial position. It does not justify a submission that theappellant has a very limited capacity to meet a substantial costs liability.[180] Having reviewed all of Mr Stevens' criticisms of the quantum, and havingregard to the somewhat arbitrary reduction made by the Tribunal of some $42,000before arriving at the amount for which the appellant was rendered liable for50 per cent, I am not persuaded that the challenge to the costs orders made by theTribunal can be made out.PCC cross-appeal[181] The PCC pursued a cross-appeal against the Tribunal's decision not to imposea period of suspension on the appellant as an aspect of the penalty.[182] In considering penalty, the Tribunal considered that the seriousness of theconduct warranted a period of suspension. The Tribunal recognised a need for furthereducation and self-analysis by the appellant as well as deterrence and setting standardsto protect the public. At the time of the hearing before the Tribunal, the appellant'sattitudes left the Tribunal in doubt that he had fully appreciated the need for change inthe way he conducted consultations.[183] However, the Tribunal was persuaded that the period of approximately11 months during which the appellant was precluded from practising would justify areduction in what would otherwise be the period of suspension, and then decided thatthe period out of practice justified reducing to zero what would otherwise have beenthe period of suspension.55[184] The PCC contends that approach was in error, and seeks a period of suspensionof up to 12 months.[185] The PCC disputes that the period the appellant spent out of practice can all beattributed to the disciplinary steps taken against him. The complaints against him weremade in mid-June 2017, and on 8 July 2017 he voluntarily agreed not to practice. Hisemployment was terminated with effect from 12 July 2017 and the MCNZ imposedinterim conditions from 26 October 2017. Those conditions restricted the appellant toconsulting only with male patients. The appellant contends that condition was sorestrictive that he was unable to secure employment. He appealed the conditionsimposed by the MCNZ to the District Court, and by agreement in mid-May 2018 thoseconditions were varied so that he could see female patients, but subject to having achaperone present. Following that, the appellant commenced part-time employmentfrom 1 June 2018 and full-time employment from 1 July 2018. The PCC takes thepoint that for the first three months of that 11 month period the appellant wasvoluntarily out of practice and also questions whether it was the imposition ofconditions by the MCNZ that was the complete cause of his inability to obtainalternative work. He was facing dismissal from his employment because of the breachof the undertaking he had given the year before, when he ceased practice. Arguably,that factor would have adversely impacted on his ability to get other jobs.[186] Given all the circumstances, that is a somewhat harsh point to take against theappellant. I consider it was appropriate for the Tribunal to take into account the fullextent of the period between the appellant leaving his previous employment and beingfreed of the most stringent conditions imposed by the MCNZ, enabling him tocommence practice again some 11 months later.55 Tribunal decision at [338].[187] The cross-appeal is brought on the basis that the seriousness of the misconductclearly warranted a period of suspension (as accepted by the Tribunal) and that it wasnot a case in which anything like a day-for-day credit ought to have been allowed forthe period during which the appellant did not practice for reasons other than asuspension imposed by the Tribunal. That submission is somewhat at odds with thecriticism of an earlier Tribunal decision where substantially less than a day-for-daycredit had been allowed. In McCaig v Professional Conduct Committee,56 Palmer Jobserved:[49] In this regard, I consider the Tribunal was wrong. It's [sic] reasoningfor crediting Dr McCaig with only three months off her suspension becauseshe had nine months off work as a practitioner is arbitrary. It is not supportedby the principles by which penalties are set and it is contrary to the principleof rehabilitation and the imposition of the least restrictive penalty that can bereasonably imposed in the circumstances. [188] Ms Goodhew, who presented the submissions on the cross-appeal,distinguished the outcome in McCaig where, on appeal, the Court increased thediscount by one month (from three to four months) in the reduction of a nine monthperiod of suspension. In that case, credit was given for mitigating circumstancesincluding the doctor's extensive co-operation with the Tribunal. She submitted thatcould not be the case here.[189] Ms Goodhew revisited the relative seriousness of the conduct, and the need fora deterrent signal that reflected a measure of consistency with other cases. In addition,she cited the Tribunal's assessment that a period out of practice to enable reflection bythe appellant on the need to alter his approach to practice was not lessened by the11 months out of practice before the Tribunal hearing. The stance adopted by theappellant before the Tribunal, claiming the correctness of his position in virtually allrespects, arguably reinforced the need for a suspension as an opportunity for him toreconsider the deficiencies in his approach in light of the Tribunal's findings.[190] Mr Stevens countered this submission by pointing to the strong support theappellant had from practice nurses familiar with his approach to practice throughoutthe period to which the particulars of the charge related, the number of enthusiastic56 McCaig v Professional Conduct Committee, above n 43.endorsements by patients entirely happy with his services throughout that period, andthe absence of anything in the nature of a disciplinary complaint or concern since heresumed practice elsewhere in June 2018.[191] Ms Goodhew invited comparison with the approach adopted in a number ofother appeals on penalty, in particular Shehata v Director of Proceedings.57 I do notfind the outcomes in those suggested comparators are particularly useful. Theycertainly suggest a benchmark for various forms of conduct, which could be ranked ascomparably serious with the conduct in this case, as requiring a period of suspensionas the least restrictive penalty to be imposed. The facts of those other cases areobviously different and each is distinctive.[192] Having weighed all the competing considerations, I am not satisfied that theTribunal erred in treating this as a case in which the period of somewhat more than11 months out of full-time practice was sufficient to cancel out what would otherwisehave warranted a period of suspension of up to approximately 12 months. I amcertainly not persuaded that the Tribunal's decision was outside the boundaries of thediscretionary range available to it, to resolve the appropriate penalty in this case. Iaccept Mr Stevens' submission that the appellant has been settled in new employmentarrangements for some two years and a period of suspension now would be evenharsher than if it was required much nearer to the misconduct.[193] Accordingly, the cross-appeal is dismissed.Costs[194] The PCC sought costs for opposing the appeal. It has succeeded in doing soexcept on two discrete details and is entitled to costs for having to respond to acomprehensive challenge to the Tribunal's decision.[195] The PCC has unsuccessfully pursued a cross-appeal and that requires areduction in what would otherwise have been the appropriate extent of costs awardedin the PCC's favour.57 Shehata v Director of Proceedings [2019] NZHC 615.[196] Ms Miller was indisposed for two of the four days of the hearing. Because ofthat, and additionally because of the scale of the appeal relative to the number ofhearing days, I am not prepared to certify for second counsel. Accordingly, I orderthat the respondent is entitled to 75 per cent of a costs award on a 2B basis for a singlecounsel for its successful opposition to the appeal.Summary[197] In all but two specific respects, the comprehensive grounds for this appeal havenot been made out. The first exception is my finding that the Tribunal was not correctin its finding in respect of complainant H that the appellant should be sanctioned forfailing to appreciate that the rest of the premises were empty and in darkness at theend of that consultation, when the evidence was that he was unaware of that situation,which arose from failings by others. A reversal of that finding cannot impact on thecorrectness of the remainder of the Tribunal's findings and the penalties imposed.58[198] The second error made out on the appeal is the unjustified terms of one aspectof a condition for the on-going conduct of practice by the appellant. That directed thatthe appellant was only to see female patients in certain circumstances with achaperone, with the cost of the chaperone always to be the appellant's liability. Iaccept that allocation of costs for a chaperone as between the appellant and hisemployer is not a matter that ought properly to be dictated by the Tribunal. I order theremoval of that condition and its replacement with a condition in the following terms:59[The appellant] is to have a female chaperone present when seeing femalepatients for any breast examination and that chaperone must be a registeredhealth professional, the cost of such service being a matter between theappellant and his then employer but in no circumstances being a charge onMCNZ.[199] The appeal against the Tribunal's decision declining to suppress the appellant'sname is also dismissed. The appellant's name has not been used other than in theintitulement and this judgment is not to be issued publicly for a period of four workingdays after its issue to the parties. In the event that the appellant provides an unqualifiedcommitment to pursue an appeal on a question of law under s 113 of the Act, then this58 See [100]–[101] above.59 This is to replace the terms of the order in [431](b) of the Tribunal decision.judgment is to issue in an anonymised form to preserve that appeal right, pendingdetermination of any second appeal.[200] The anonymised form in which all others participating in the proceeding havebeen described is to be maintained and no particulars are to be provided which mightgive rise to their being identified.[201] The PCC's cross-appeal against the Tribunal's decision not to impose a periodof suspension is also dismissed.[202] The PCC is entitled to an order of costs in its favour at 75 per cent of the costsaward on a 2B basis for a single counsel for its successful opposition to the appeal.60Dobson JSolicitors:The Law Connection Limited, Waikanae for appellantClaro, Wellington for respondentThomas Dewar Sziranyi Letts, Lower Hutt for Health Practitioners Disciplinary Tribunal60 See [196] above.