Human Rights Review Tribunal, HRRT 026/2012,  NZHRRT 38, (30 October 2013)
Ruth Nelson is an iridologist and natural health practitioner of more than 35 years' experience. Her practice is situated at Te Horo. In the 17-month period from February 2008 to June 2009 she treated a tumour on the head of Mrs Y M Maine. On 22 June 2009 Mrs Maine was admitted to hospital, at which point the tumour was diagnosed as cancerous. It had destroyed a large area of scalp and underlying skull down to the pulsating dura. Mrs Maine underwent surgery on 27 July 2009 but eight months later the cancer recurred and she died from the disease on 25 June 2010.
In this proceeding the Director of Proceedings alleged that, as a health care provider, Ms Nelson breached numerous provisions of the Code of Health and Disability Services Consumers' Rights (Code). While the witnesses for the Director and for Ms Nelson were agreed on limited issues, they gave strikingly different accounts regarding almost every aspect of Mrs Maine's interactions with Ms Nelson. The Tribunal accepted a submission by Ms Nelson's counsel that there was real difficulty in establishing the truth without being able to take evidence from Mrs Maine herself. The Tribunal preferred the evidence of Ms Nelson and her daughter Megan to other witnesses in the case.
The Tribunal did however, find that Ms Nelson erred in failing to refuse to have anything to do with Mrs Maine's cyst from the time it was first shown to her on 19 February 2008. This was not some small, if not trifling physical manifestation on Mrs Maine's scalp which could be managed without conventional medical intervention. It was a large lesion on the scalp, then 8cm in diameter, soon to almost double in size to 15cm. The hair and skin were missing and its appearance, in Ms Nelson's own words was disgusting and it was "weeping and smelly".
The Tribunal held that the circumstances were so extreme that anyone, whether a natural health practitioner or a registered medical practitioner would have immediately recognised the need for urgent admission to hospital.
Ms Nelson's treatment involved the removal of dead skin with tweezers, the application of calendula oil, colloidal silver and the deployment of a dressing.
The Tribunal held that by commencing and continuing treatment of the lesion Ms Nelson was not exercising reasonable care and skill, that is, exercising the standard of reasonable care and skill of the reasonably careful natural health practitioner of complementary medicine. Such practitioner would have refused to apply any treatment to the lesion. The fact that Ms Nelson was acting (as the Tribunal found) out of kindness and compassion was no defence though it was relevant to the issue of remedy. In summarising its findings, the Tribunal went on to hold that Ms Nelson's failure was not the result of "indifference, carelessness or negligence".
Turning to consider remedies, the Tribunal held that the responsibility for not seeking medical intervention at an earlier stage was entirely that of Mrs Maine. It could not be assumed that if Ms Nelson had done nothing Mrs Maine would have gone to hospital. There was no basis for an award for loss of the benefit of medical intervention at an earlier stage.
The Tribunal also found that there was no basis on which emotional harm (humiliation, loss of dignity or injury to feelings) could be inferred. The Tribunal went on to say that, in any event, it would regard the awarding of such damages as inappropriate in view of the findings it had reached.
The Tribunal's decision is available at http://www.nzlii.org/nz/cases/NZHRRT/2013/38.html
Last reviewed February 2019