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HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL FINDS PRACTITIONERS GUILTY OF MISCONDUCT

In two recent decisions, the Health Practitioners Disciplinary Tribunal (the Tribunal) has censured two practitioners for professional misconduct: one involving an inappropriate personal relationship and the other an error in treatment.

Psychologist blurs professional boundaries


The Tribunal has found a Nelson psychologist guilty of professional misconduct for her conduct during and after her treatment of the complainant (Ms S) and the complainant’s then partner (Mr E).

Between October 2012 and January 2013, the psychologist provided both joint and individual counselling to Ms S and Mr E in an attempt to address their relationship issues.

During the period of counselling and afterwards the psychologist entered into separate relationships with both Ms S and Mr E that were found by the Tribunal to be inappropriately personal or unprofessional. The psychologist sent various texts and emails to Ms S and Mr E, invited Ms S to attend a jazz festival with her, stayed in Ms S’s holiday house, and purchased lampshades for Ms S’s holiday house and gave them to her as a gift. The psychologist also visited Mr E’s house, had lunch with him, and swam with him at a local beach.

After becoming aware of the swimming incident Ms S was very distressed and complained about the psychologist to the Psychologists Board of New Zealand.

Following this, in March 2013, the psychologist visited Mr E at his house and discussed the complaint Ms S had made over wine. During the visit, Mr E inadvertently telephoned Ms S who then overheard parts of the conversation.

The psychologist also revealed personal health information about Ms S without Ms S’s consent and attempted to convince Mr E to support her in responding to Ms S’s complaint or otherwise persuade Ms S to drop the complaint.

A Professional Conduct Committee (PCC) was appointed by the Psychologists Board to investigate the psychologist’s conduct. The PCC laid a charge before the Tribunal alleging that the psychologist’s failure to maintain appropriate professional boundaries amounted to professional misconduct. First, because her actions amounted to malpractice or negligence, and secondly, because they were likely to bring discredit to the profession of psychology.

The psychologist admitted the incidents had taken place but denied that they were inappropriate or unprofessional or did any harm in relation to her services as a psychologist.

Tribunal findings

The Tribunal found that the psychologist was guilty of professional misconduct. First, the Tribunal held that the psychologist’s conduct amounted to malpractice and negligence as she had failed to maintain appropriate professional boundaries with both clients.

In relation to Ms S, the Tribunal found that the psychologist was continuing to act as Ms S’s psychologist while also engaging in another role – in the nature of friendship. The Tribunal found that the boundaries between friendship and the professional relationship had been blurred and that this had been done by the deliberate acts of the psychologist.

In relation to Mr E, the Tribunal found that the lunch and swim was a serious breach of professional boundaries by the psychologist and was not in the best interests of her clients. This was evidenced by the serious distress it caused Ms S and the subsequent conflict between Ms S and Mr E. In relation to the subsequent visit to Mr E’s home, the Tribunal considered this showed continued blurring of the psychologist’s roles and was again an intentional breach of her professional boundaries.

The Tribunal found that the psychologist had no consent or reason to discuss Ms S’s personal health information. The Tribunal also considered it was wholly inappropriate for a registered psychologist to enlist and involve a client, or former client, to respond to or encourage the withdrawal of a complaint.

The Tribunal concluded that the psychologist’s actions constituted a significant neglect of professional duties and fell seriously short of the expected professional standard.

The Tribunal was equally satisfied that the psychologist’s conduct was likely to bring discredit to the psychology profession and also constituted professional misconduct in this sense. The psychologist’s conduct was not conduct a reasonable and informed member of the public would expect from a psychologist who is entrusted to provide professional services to a couple at a difficult point in their relationship. The Tribunal held that the breach of professional boundaries with two clients in such an extensive way over a period of several months could only bring discredit to the profession.

On the issue of penalty, the PCC submitted that the breaches were serious and the psychologist failed to show insight into the harm she caused. The PCC argued this was further exemplified by the email the psychologist sent to Ms S after the Tribunal’s substantive decision was released suggesting she had lied to the Tribunal and would be subject to the ‘Law of Karma’.

The Tribunal agreed and ordered that the psychologist be censured and suspended for 18 months. The Tribunal also imposed a range of conditions on the psychologist’s return to practice and indicated that an award of costs would have been made against the psychologist if she were not legally aided.

Finding of misconduct for dentist’s attempt to cover up root canal mistake

In March 2014, we reported on a dentist who had been investigated by the Health and Disability Commissioner after attempting to cover up a root canal mistake. The matter has now been heard by the Tribunal who has censured and fined the dentist.

During a root canal operation in 2008, one of the dentist’s fine instruments broke off in his 15 year old patient’s tooth. The dentist was aware that the instrument had separated during the root canal procedure. However, he did not tell the patient about this or record the incident in his clinical records.

In 2010, the patient sought treatment for a toothache resulting from the root canal incident. The dentist commenced retreatment of the patient’s tooth, which involved further cleaning of the patient’s root canal and three separate attempts to remove the instrument.

At no time did the dentist reveal the presence of the instrument in the patient’s tooth, fully explain the retreatment procedure and the reason for the retreatment, or advise the patient of alternative treatment options. The dentist told the patient and his family that there was nothing wrong but that he was just trying to clear out an infection that was causing the ongoing pain.

Neither the original root canal incident nor the retreatment consultations were fully documented in the dentist’s notes.

After retreatment, the patient sought a second opinion from another dentist who revealed the existence of the separated instrument.

The Deputy Health and Disability Commissioner found that the dentist had breached several rights in the Code of Health and Disability Services Consumers’ Rights by failing to disclose key information to the patient and failing to obtain the patient’s informed consent. The matter was referred to the Director of Proceedings who brought a charge of professional misconduct against the dentist before the Tribunal.

The dentist claimed he believed the root had been adequately cleaned and did not think there would be any issues arising from it. The dentist said he did not tell the patient because he did not want to cause the patient or his family unnecessary concern. However, the dentist accepted that his conduct amounted to professional misconduct.

Tribunal findings

The Tribunal found that the dentist’s behaviour amounted to professional misconduct in that it amounted to both malpractice and negligence, and discredited the dentistry profession.

The Tribunal found that the dentist had failed to discharge his professional obligations to his patient by failing to adequately inform him, failing to advise him as to treatment options and get informed consent to treatment, and failing to keep adequate clinical records. This conduct fell below the minimum standards of acceptable conduct and was deserving of disciplinary sanction.

On the issue of penalty, the Tribunal noted that this was a serious case which involved a breach of the dentist’s fundamental obligation to protect the public. Aggravating factors included the deliberate nature of the dentist’s conduct, the numerous opportunities available to disclose the incident to the patient, and the vulnerability of the patient. Mitigating factors included the dentist’s unblemished record after ten years of dental practice, co-operation with the Tribunal throughout the proceedings, and the fact that he had made amendments to his practice as a result of the proceedings.

The Tribunal censured the dentist, fined him $3,000, and ordered that he pay 30% of the costs of the proceeding.

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