Paul Charles Bennett v Professional Conduct Committee of The Medical Council of New Zealand

• Jurisdiction: New Zealand
• Judge: Osborne J
• Judgment Date: 29 April 2022
• Neutral Citation: [2022] NZHC 876
• Docket Number: CIV-2021-412-63
• Court: High Court

UNDER the Health Practitioners Competence Assurance Act 2002

IN THE MATTER of an appeal pursuant to s 106(2)(b) and (d)

Between

Paul Charles Bennett

Appellant

and

Professional Conduct Committee of the Medical Council of New Zealand

Respondent

[2022] NZHC 876

Osborne J

CIV-2021-412-63

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA

ŌTEPOTI ROHE

Professional Discipline — appeal against cancellation of medical registration –— misconduct — sexual relationship with patient — effect of retirement on penalties — whether the penalties were manifestly excessive — name suppression — s106 Health Practitioners Competence Assurance Act 2003

Appearances:

M F McClelland QC and M R Grant for Appellant

P K Feltham and D T E Moore for Respondent

M F McClelland, QC, Wellington

JUDGMENT OF Osborne J

PARTS OF THIS JUDGMENT HAVE BEEN REDACTED

This judgment was delivered by me on 29 April 2022 at 3.30 pm

Registrar/Deputy Registrar

Date:

Introduction	[1]
The charge	[10]
Statement of facts	[11]
Tribunal decision on liability	[12]
Tribunal decision on penalty	[14]
Ms E's victim impact statement (VIS)	[18]
The Decision	[19]
Tribunal's reasons for the Decision	[22]
Professional misconduct	[22]
Penalty - the Tribunal's discussion of principles	[26]
Penalty - the Tribunal's decision	[32]
Dr Bennett's appeal grounds	[44]
Approach on appeal	[45]
Dr Bennett brings this appeal under s 106(2) of the Act	[45]
Dr Bennett's appeal against the cancellation order - the issue as to the VIS	[52]
How the VIS was produced	[53]
The VIS - submissions for Dr Bennett	[57]
The VIS - submissions for the PCC	[66]
The VIS - discussion	[79]
Cancellation of registration - a manifestly excessive order?	[90]
Counsels' submissions	[91]
Well-established patient/doctor relationship for close to 10 years from 2006	[92]
Depth to the therapeutic relationship	[95]
Dr Bennett in a position of trust with a firmly-entrenched power imbalance	[99]
Lengthy intimate relationship	[103]
Payment for Ms E's [activity] while on the benefit	[105]
Transfer of Ms E's care	[108]
Continuing to act as GP for Ms E's children and family	[111]
Ms E as a vulnerable patient	[114]
The secrecy of the relationship	[118]
The victim impact statement - VIS	[125]
Pre-meditation	[129]
Prescribing psychotropic medication or controlled drugs	[130]
Dishonest statement to the Council	[133]
Mitigating factors	[138]
Shared love of [activity and undertaking the activity] together	[140]
Limited therapeutic relationship	[143]
Transfer of care to Dr McMillan	[146]
No threat to public safety	[148]
Overall assessment	[151]
Outcome on first ground of appeal	[157]
The directions condition	[158]
Submissions for Dr Bennett	[159]
Submissions for PCC	[166]
Discussion - directions condition	[167]
The suppression refusal	[169]
Submissions for Dr Bennett	[173]
Discussion - suppression refusal	[174]
Orders	[176]

Introduction

1 Dr Paul Bennett appeals against findings of the Health Practitioners Disciplinary Tribunal (the Tribunal), including an order cancelling his registration as a medical practitioner.

2 Dr Bennett had practised as a general practitioner (of medicine) from 1980 until he retired in May 2019.

3 In August 2020, the Professional Conduct Committee (PCC) of the Medical Council of New Zealand (Council) laid a charge of professional misconduct against Dr Bennett under s 100(1)(b) Health Practitioners Competence Assurance Act 2003 (the Act). Dr Bennett subsequently admitted the particulars of an amended charge. He also admitted his conduct separately and cumulatively amounted to professional misconduct in that it brought or was likely to bring discredit to the profession.

4 The charge related to Dr Bennett's entering into an inappropriate sexual relationship with a patient (Ms E) between April 2016 and June 2018, providing Ms E with medical care from February 2016 to October 2018 while having a close personal relationship with her, and subsequently intentionally and knowingly attempting to mislead the Council by denying he had been in a sexual relationship with Ms E. The Tribunal declined to grant Dr Bennett permanent suppression of his name and identifying particulars.

5 The Tribunal, following a hearing in February 2021, found the charge against Dr Bennett proved pursuant to s 100(1)(b) of the Act. The Tribunal made orders for:

• (a) the immediate cancellation of his registration (pursuant to s 101(a) of the Act) (the cancellation order);

• (b) the imposition of a number of conditions (pursuant to s 102 of the Act) including that should he recommence clinical practice, he comply with all directions of the Registrar or Deputy Registrar of the Council (the directions condition);

• (c) a censure (pursuant to s 101(d) of the Act);

• (d) payment of a contribution of $30,000 towards the PCC's and Tribunal's total costs of $83,734.00 (the costs order); and

• (e) the permanent suppression (pursuant to s 95(2)(d) of the Act) of Ms E's name and identifying details.

6 The Tribunal refused Dr Bennett's application for suppression of his name (the suppression refusal).

7 The Tribunal published its decision and reasons for decision on 18 May 2021 (the Decision). 1

8 Dr Bennett appealed against the cancellation order, the directions condition, and the suppression refusal. For Dr Bennett it was also submitted that the Tribunal incorrectly admitted Ms E's victim impact statement (VIS) and erred in placing significant weight on it in the Decision.

9 After Dr Bennett filed his appeal, the Tribunal heard from the parties and issued a ruling as to redaction. The Decision was re-issued in a form redacted to remove information that might lead to the identification of Ms E (the Redaction Ruling). 2 Dr Bennett on this appeal also challenges the Redaction Ruling.

The charge

10 The (amended) charge recorded:

Pursuant to s 91 of the Act the [PCC] has reason to believe that grounds exist entitling the Tribunal to exercise its powers under s 100 of the Act.

Particulars of charge

Pursuant to s 81(2) and 91 of the Act the [PCC] charges Dr Paul Charles Bennett as follows:

Inappropriate relationship with a patient

• 1. Between April 2016 and June 2018, Dr Bennett entered into and continued a sexual relationship with Ms [E], who had recently been a patient of his at the time of commencing the relationship; and/or

• 2. Between 13 February 2016 and 9 October 2018, Dr Bennett provided medical care to Ms [E], who he had a close personal relationship with; and/or

Making misleading statements to the Medical Council

• 3. On or about 2 November 2018, Dr Bennett intentionally and knowingly attempted to mislead a representative of the Medical Council by denying that he had been in a sexual relationship with Ms [E].

The conduct alleged above at paragraphs 1 to 3 amounts to professional misconduct in that, either separately or cumulatively, it has brought or is likely to bring discredit to the profession, pursuant to section 100(l)(b) of the Act.

Statement of facts

11 The evidence relied on by the PCC to establish the facts underlying the charge was set out in an agreed statement of facts (Statement of Facts), which read (with the patient's name herein changed to “Ms E”):

Professional background

• 1. Dr Paul Bennett graduated with a Bachelor of Medicine and Bachelor of Surgery from the University of Otago in 1978. In 1980, Dr Bennett obtained a diploma in Obstetrics. He became a Member of the Royal New Zealand College of General Practitioners in 1990, and a Fellow in 1998.

• 2. At the relevant times, Dr Bennett owned and was the Director of Broadway Medical Centre, Dunedin.

• 3. Dr Bennett was recorded as non-practising on the Council's register on 1 June 2019.

Treatment of Ms E

• 4. Ms E enrolled with the Broadway Medical Centre (the Centre) on [REDACTED] July 2006, under the care of Dr Bennett.

• 5. In July 2006, Dr Bennett prescribed Ms E an antidepressant. However, Ms E only took them for a short period of time, as she did not like their effects. Around this time, Ms E took up [an activity].

• 6. Dr Bennett also had an interest in [the same activity]. He and Ms E would discuss their shared interest in this during her appointments.

• 7. Ms E would generally go to the Centre for appointments every three months, as part of the management of her [chronic health condition].

• 8. Ms E also enrolled her children [REDACTED] at the Centre.

• 9. In September 2014, Dr Bennett went on a six week holiday to the United Kingdom. He asked Ms E if she would be interested in [an activity] while he was away, which Ms E agreed to do. Ms E was paid in cash for this work.

• 10. When Dr Bennett returned from overseas, he was happy with the work Ms E had done in the [activity]. They agreed that she would continue [in the activity]. Ms E was free to choose when she did this work.

• 11. At the time, Dr Bennett did not work on Thursday afternoons, and later on in 2015 did not work at all on Thursdays. If Ms E was [undertaking the activity], Dr Bennett would sometimes [also undertake this activity].

• 12. Over 2015, Dr Bennett and Ms E spent a large amount of time [undertaking the same activity], and a friendship developed between them. They would sometimes [attend together events and fixtures that were...