Ben-Dom v A Professional Conduct Committee Appointed by The Medical Council of New Zealand

• Jurisdiction: New Zealand
• Judge: Dobson J
• Judgment Date: 23 November 2020
• Neutral Citation: [2020] NZHC 3094
• Court: High Court
• Docket Number: CIV-2020-485-206
• Date: 23 November 2020

IN THE MATTER OF an appeal pursuant to section 106(2) of the Health Practitioners Competence Assurance Act 2003

Between

Ran Ben-Dom

Appellant

and

A Professional Conduct Committee Appointed by The Medical Council of New Zealand

Respondent

[2020] NZHC 3094

Dobson J

CIV-2020-485-206

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Medical Practitioners — appeal against a finding of professional misconduct by the Health Practitioners Disciplinary Tribunal — the misconduct related to inappropriate physical examinations and questioning of female patients — the appellant had practised medicine in Israel before immigrating to New Zealand — consideration of cultural and language differences — “theory of “medicine” defence — whether the appellant should be given name suppression — Health Practitioners Competence Assurance Act 2006

Counsel:

D L Stevens QC and S Tomlinson for appellant

A K Miller and H K Goodhew for respondent

D D Vincent for Health Practitioners Disciplinary Tribunal

RESERVED JUDGMENT OF Dobson J

Contents

Introduction	[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 Practitioners Competence Assurance Act 2003 (the Act) by a medical practitioner who has been found guilty of professional misconduct by the Health Practitioners Disciplinary Tribunal (the Tribunal). 1

2 The appellant immigrated to New Zealand in 2009. He had practised medicine in Israel since 1989. His conduct in consultations with nine different female patients between June 2011 and May 2017 resulted in complaints that were investigated by a professional conduct committee (PCC) appointed pursuant to procedures under the Act. The investigation led to a charge of professional misconduct, the terms of which included 12 particulars and a number of sub-particulars. 2

3 All of the nine complainants were female patients of other doctors at the medical centre at which the appellant worked as a general practitioner in the relevant period. Their complaints arose out of consultations with the appellant who saw him when their regular doctor was unavailable.

4 Eight of the women complained that the appellant raised matters of breast health with them, in contexts unrelated to the medical concerns about which they had sought an appointment. They also complained that the appellant had raised the topic insensitively and persisted with it, despite varying levels of evident reluctance on their parts.

5 Four of the complainants permitted the appellant to conduct a clinical breast examination (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 appellant about a very sore throat. He initiated a discussion about sexual intercourse and masturbation.

7 After interviewing all the complainants and the appellant, the PCC presented the charge and all its particulars on the basis that it accepted the appellant's conduct was 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 its decision on 17 April 2020. The charge was found to be made out, but not to the extent that 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 application for non-publication of his name was declined but there has been no publication of his name pending determination of the appeal.

9 After receipt of the complaints, on 26 October 2017 the Medical Council of New Zealand (MCNZ) imposed interim conditions on the appellant's entitlement to practise. The imposition of those conditions was the subject of a separate appeal pursued in the District Court. That led to an agreement on 16 May 2018 permitting him to practise on somewhat less restrictive conditions that were to apply until the Tribunal's decision. 3

10 The appellant contested the outcome and findings of the Tribunal, giving notice of 23 grounds of appeal. Shortly before the hearing of the appeal, the appellant advised that three of those grounds were being abandoned.

11 The Tribunal generally abides the decision of the Court on appeals from its decisions. It instructed counsel to participate in this appeal because the appellant contested its jurisdiction to impose costs orders on the terms that it did. However, the jurisdictional challenge in respect of costs was not pursued and at the hearing I heard relatively 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 by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—

• (a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or

• (b) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or

  …

13 The range of penalties the Tribunal may impose is listed in s 101, and in descending order of seriousness after cancellation of registration and suspension for a period 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 commencing practice following the date of the order, for a period not exceeding 3 years, practise his or her profession only in accordance 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 health practitioner pay a fine not exceeding $30,000:

(f) order that the health practitioner pay part or all of the costs and expenses of and incidental to any or all of the following:

• (i) any investigation made by the Health and Disability Commissioner under the Health and Disability Commissioner Act 1994 in relation to the subject matter of the charge:

• (ii) any inquiry made by a professional conduct committee in relation to the subject matter of the charge:

• (iii) the prosecution of the charge by the Director of Proceedings or a professional conduct committee, as the case may be:

• (iv) the hearing by the Tribunal.

…

14 Appeals against findings under s 100 and penalties imposed under s 101 are provided for in s 106(2) of the Act. Section 109(2) provides that the appeal is to be by way of rehearing. Under s 109(3), the Court may confirm, reverse or modify the decision or order appealed against and may make any other decision or order that the Tribunal could have made.

15 The appeal against liability and penalty findings is a general one to which the approach 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 it should differ from the Tribunal's decision and the weight that the Court gives to the Tribunal's conclusions is a matter of judgement in each particular case. 5 I separately consider the bases for appeals against costs orders, and from the decision not to suppress publication of the appellant's name, when I address those aspects of the appeal. 6

The complaints

16 On 8 June 2011, complainant A took her six year old son for a consultation about his health. During the consultation, the appellant raised the topic of her breast health with complainant A in circumstances she found embarrassing. The embarrassment 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 sore throat. The appellant raised the topic of breast health and performed a CBE. This complaint included that the appellant did not offer a chaperone to be present, the examination was not conducted...