Director of Proceedings v Mr N
Health Practitioners Disciplinary Tribunal 838/Phys16/338D, (19 August 2016)
The Director of Proceedings laid a charge against Physiotherapist, Mr N, in the Health Practitioners Disciplinary Tribunal ("the Tribunal") concerning a breach of professional boundaries in his clinical relationship with a patient ("the health consumer").
On 30 December 2013 the health consumer attended a ninth and final physiotherapy treatment session with Mr N for a shoulder injury. After the appointment Mr N and the health consumer exchanged Viber and text message communications which culminated in Mr N offering to drop off some DVD's to the health consumer. Shortly after his arrival at the health consumer's home a pizza delivery arrived and Mr N was invited by the health consumer to stay for some pizza. Shortly thereafter Mr N and the health consumer had sexual intercourse. This occurred not more than 12 hours after Mr N had provided physiotherapy treatment to the health consumer.
The matter proceeded by way of an agreed summary of facts whereby Mr N accepted that he and his patient had sexual intercourse on the same day he had provided physiotherapy treatment to her but he did not accept that his conduct amounted to professional misconduct as per s 100(1)(a) or (b) of the Health Practitioner's Competence Assurance Act 2004 ("the Act").
The Tribunal found Mr N to have failed to maintain proper professional boundaries and to have breached the Physiotherapists Code by entering into the relationship. As to whether the conduct amounted to professional misconduct in terms of s 100(1)(a) or (b) of the Act, the Tribunal took a number of aggravating features into account, including the significant age gap between Mr N and the health consumer, and concluded that in this case there was "a significant power imbalance in the relationship between the Practitioner and his former patient, which certainly had the potential to undermine the latter's capacity to make an independent judgment". The Tribunal found the practitioner to have acted in a way that constituted malpractice and as having brought "harm to the reputation of the profession".
The Tribunal stated it had "little difficulty in concluding that the Practitioner's professional misconduct [justified] the imposition of a disciplinary penalty" in the sense that Mr N embarked on a sexual relationship with a former patient in circumstances where there was a "significant risk that he was taking advantage of the power imbalance which existed between him and his former patient so that her capacity to make a free and unfettered judgment is in doubt".
The Tribunal considered this case to be a "serious act of professional misconduct" but one which was not at the "most serious end" and highlighted factors such as the pre-existing relationship between the parties (outside of the formal clinical relationship), that the sexual relationship was consensual and there was no allegation of impropriety during the time that the formal clinical relationship was extant.
On that basis the Tribunal took a rehabilitative approach to penalty and ordered that Mr N "continue the supervision regime imposed by the Physiotherapists board, not to treat female patients and not to undertake formal research involving direct contact with female participants" until such time as he has completed a continuing professional development course, approved by the Physiotherapy Board of New Zealand, focused on proper boundaries between health professionals and their patients. Mr N was also ordered to pay a fine of $5,000 and 40% of the costs associated with the proceedings.
In order to protect the identity of the health consumer the Tribunal permanently suppressed Mr N's name, his place of residence and work and "any other identifying details". An order was made in the same terms for the health consumer.
View the Tribunal's decision here: https://www.hpdt.org.nz/Charge-Details?file=Phys16/338D
Last reviewed February 2019