Health Practitioners Disciplinary Tribunal decisions
The Health Practitioners Disciplinary Tribunal (The Tribunal) has asked us to publish a summary of its recent decisions. You can access the full decision on their website at the links provided.
Dr Joseph WILLIAMS – Med 16/371P
At a hearing held from 31 July to 10 August 2017, the Tribunal considered two charges laid by the Professional Conduct Committee (PCC) against Dr Joseph Williams, registered medical practitioner of Auckland. The Tribunal treated the two charges as one charge but with two categories.
Category 1 concerned prescribing a combination of a potent topical steroid and an antifungal cream in circumstances that amounted to professional misconduct in respect of 12 patients.
Category 2 concerned providing dietary advice in circumstances that departed from accepted medical practice or that resulted in actual harm to the patient.
Certain particulars of the charge also referred to issues concerning note-taking in the context of the prescribing of the medicines to the patient.
Category 1 of the charge was upheld. While Dr Williams may have used the mixture of the steroid and the antifungal cream with significant success, on the evidence before the Tribunal the use of the mixture for the individual cases was inappropriate and/or excessive.
The Tribunal was concerned that Dr Williams mixed the two medicines without himself having conducted any proper validated analysis of the consequences and without adequate formal research. A further major factor was that Dr Williams in many cases, prescribed the mixture in the face of concerns being expressed to him by other professionals whose views he should have respected and taken into account.
Category 2 of the Charge was also upheld. The dietary advice was inappropriate in the particular circumstances of the patient and brought harm to the patient.
The Tribunal also found Dr Williams’ note-taking to be inadequate.
The Tribunal censured Dr Williams, fined him $10,000 and imposed conditions on his practice. The Tribunal ordered Dr Williams to pay a total contribution of $145,000 towards the costs of the Tribunal and the PCC.
The Tribunal directed publication of its decision and a summary.
The Doctor appealed to the High Court against the Tribunal’s decision. The appeal was dismissed. Williams v PCC  NZHC 2472.
Dr H – Med17/378D
The Tribunal considered a charge of professional misconduct laid by the Director of Proceedings against Dr H, registered medical practitioner.
Particular 1 of the charge alleged that on four separate occasions when the patient who was over 50 years of age presented with dysphagia and or continuing weight loss, Dr H failed to refer the patient for an endoscopy and/or to a specialist. Particular 2 of the charge alleged that Dr H failed to communicate adequately with the patient to clarify his symptoms.
The medical practitioner accepted they had failed to properly refer the patient to a specialist or for an endoscopy. The medical practitioner believed they were blinkered by their initial diagnosis of gastritis. However, the medical practitioner accepted that by the third consultation, a referral for gastroscopy should have been done. There was no admission that this was professional misconduct, simply, that it was negligence at that point not to have made the referral.
The Tribunal found that Particular 1 of the charge was established as professional misconduct, warranting disciplinary sanction. It was satisfied that the failure to refer was negligent from the outset at the first consultation and remained so at each of the successive consultations.
The Tribunal found Particular 2 of the charge not established and that Dr H had not failed to communicate with the patient as charged.
Dr H was censured, ordered to pay 30 percent of the costs of the Tribunal and the Director of Proceedings amounting to $21,636.
The Tribunal ordered permanent suppression of Dr H’s name and directed publication of its decision and a summary.
Dr H appealed the decision of the Tribunal to the High Court. The appeal was dismissed H v Director of Proceedings  NZHC 2175
Dr Martyn HOWELLS – Med 18/416P
On 17 July 2018 by video conference, the Tribunal considered a charge laid by the PCC against Dr Martyn Howells, medical practitioner of Dunedin.
The charge alleged that Dr Howells had between 2004 and 2010 altered the medical records of 12 patients resulting in a financial benefit of $3,929 to which his practice was not entitled.
The hearing proceeded on an agreed summary of facts basis. The Tribunal was satisfied that the charge was established and made out as misconduct. The Tribunal also noted that Dr Howells had repaid the $3,929 in December 2015.
The Tribunal censured Dr Howells and imposed conditions on his practice for a period of 3 years. The Tribunal ordered him to pay a contribution of $20,000 towards the total costs of the PCC and $6,000 towards the costs of the Tribunal.
Dr Hirron FERNANDO – Med 16/352P
On 19 September 2016 the Health Practitioners Disciplinary Tribunal considered a charge laid by the Professional Conduct Committee against Dr Hirron Fernando, registered medical practitioner formerly of Hawkes Bay (the Doctor).
The charge alleged that the Doctor, registered in New Zealand but practising overseas, contacted New Zealand district health boards requesting health information and/or medical records for patients he falsely claimed he was treating in the United Kingdom. The Doctor then went on to use the information in a court in the United Kingdom for his own private purpose, without the consent of the patients.
The Doctor did not appear at the hearing, nor was he represented. The hearing proceeded on a formal proof basis.
The Tribunal was satisfied that the charges were made out as professional misconduct and were sufficiently serious to warrant disciplinary sanction.
The Tribunal noted that an unusual feature of this case was that during the period of time in which the Doctor conducted himself in this way, although a New Zealand registered doctor, he did not hold a current practising certificate and was living and working abroad.
The Tribunal censured the Doctor and cancelled his registration. The Tribunal ordered costs of $30,428.77 towards the Tribunal’s costs and $26,480.40 towards the PCC’s costs.
The Doctor appealed the decision of the Tribunal to the High Court on the grounds the Tribunal had no jurisdiction to make the orders it made. The High Court dismissed the Doctor’s appeal.
Dr Stephen JOHNS – Med 15/318D
On 07 – 11 March 2016 the Health Practitioners Disciplinary Tribunal considered a charge laid by the Director of Proceedings (DP) against Dr Stephen Johns, medical practitioner of Auckland (the doctor).
The charge alleged that Dr Johns failed to respond appropriately to an abnormal and progressively pathological foetal cardiotocograph indicating severe foetal compromise and failed to communicate with the patient and/or the patient’s husband.
Dr Johns denied the charge of professional misconduct but accepted that the failed to respond in a clinically appropriate manner as the situation unfolded and he failed to communicate effectively with the patient and her husband. The hearing proceeded by way of a defended hearing.
The Tribunal was satisfied that both charges were made out and professional misconduct had been established in this case that warranted disciplinary sanction.
The Tribunal censured Dr Johns; imposed a fine of $7,000 and imposed conditions on his practice for a period of 3 years. Dr Jones was ordered to pay 30% of the total costs, as a contribution to costs of the Tribunal and PCC.
Dr Johns appealed the Tribunal’s findings that his conduct amounted to professional misconduct. The DP cross appealed against the doctor's permanent name suppression.
The High Court dismissed Dr John's appeal and allowed the appeal on name suppression.
Dr O – Med 16/375P
At a hearing held on 15 – 17 May 2017 the Health Practitioner’s Disciplinary Tribunal considered a charge laid by the Professional Conduct Committee (PCC) against Dr O,
(the Doctor) of Auckland.
The charge alleged that the Doctor used incorrect laser settings while treating his patient; recorded the incorrect settings in the patient notes; retrospectively altered the laser settings recorded in the clinical records and falsely advised or mislead the DHB, the Medical Council and the PCC of the laser settings. While suspended from his employment with the DHB, the Doctor breached conditions of his suspension by entering the DHB premises. It is further alleged that the Doctor misled or attempted to mislead the Chief Medical Officer of the DHB in the change of his supervisor.
The charges were defended by the Doctor.
The Tribunal found that by a “fairly fine margin” particular 1 of the charge was not established. Particular 2 and 3 were both not established by the PCC.
The Tribunal noted that this whole matter had its genesis in concerns with the DHB about the Doctor’s performance and competence and the Tribunal was is in no position to reach views about this. The Tribunal went on to say that this was not the appropriate forum for addressing such matters.
Dr S - Med 18/417P
On 26 October 2018 the Health Practitioners Disciplinary Tribunal considered a charge laid by a Professional Conduct Committee (PCC) against Dr S, medical practitioner (the Doctor).
The charge contained four particulars. The first three particulars alleged that the Doctor prescribed medications for herself or in the names of family members for those family members or for herself. The PCC alleged that each of these particulars either separately or cumulatively amounted to professional misconduct,
The fourth particular alleged that the Doctor was convicted on a charge of driving with excess alcohol and a further charge of failing to stop when required to do so by a law enforcement officer and that this conduct reflected adversely on the practitioner’s fitness to practise.
The hearing proceeded on the basis of an Agreed Summary of Facts.
The Tribunal found the facts established and that the charges were made out except for the particular of the conviction charge relating to failing to stop. This particular did not qualify for consideration under section 100(2) of the HPCA Act as the maximum penalty for the conviction was below the requirement of imprisonment of a term of three months or longer.
The charge was serious. Prescribing any drugs to family members, particularly drugs of dependence, is of concern because of the lack of objectivity on the part of the medical practitioner which in turn could lead to serious consequences for the family member.
The Tribunal censured the Doctor and fined her $5,000. Conditions were imposed for a period of three years. The Tribunal also recommended the Medical Council’s Health Committee carry out a comprehensive assessment of the Doctor’s health needs and a comprehensive review of the Doctor’s current health management programme.
Costs of $17,000 were awarded against the Doctor and an order of permanent name suppression of the name of the Doctor and any identifying features including her health issues was made.
The Tribunal exempted from the name suppression order publication by the Medical Council referring to the Tribunal decision on the Doctor’s formal record and the Doctor herself from informing any prospective employer of the Tribunal’s decision. The Medical Council was also able to refer to the decision when responding to any legitimate enquiry by or on behalf of a party considering employing the Doctor.
The Tribunal further directed publication of its decision and a summary. The full decision can be found on the website at the following link: