High Court overturns HDC ruling on health centre’s liability for doctor’s misdeeds

“The HDC needs to spell out its reasons for making the referral or in borderline cases for not making the referral”

A judge has thrown out an HDC opinion that held a healthcare centre liable for the misdeeds of one of its doctors.

The HDC had ruled Waikanae Health Centre didn’t do enough to protect its patients from an employee who breached the Code of Health and Disability Services Consumers’ Rights for his breast examinations of women.

The health centre also was found in breach and was referred for possible proceedings in the Human Rights Review Tribunal.

But the centre took the matter to the High Court at Wellington, and Justice Matthew Muir has now ruled the matter be set aside. It goes back to the HDC.

University of Auckland law professor Ron Paterson, a former health and disability commissioner, says it is the first time, to his knowledge, a healthcare provider has succeeded at judicial review in having an HDC opinion set aside.

The centre had in 2009 employed family doctor Ran Ben-Dom, who had moved to New Zealand from Israel and later became an RNZCGP fellow.

Complaints involving nine female patients from 2011 to 2017 led to an investigation by a Medical Council professional conduct committee (PCC). Dr Ben-Dom was found guilty of professional misconduct by the Health Practitioners Disciplinary Tribunal following a hearing in November 2019.

In most cases, he discussed breast-health matters with patients and, in four of those, the complainants permitted breast examinations after varying levels of reluctance.

One patient was a 15-year-old girl seeking help for a sore throat, with whom the doctor initiated a discussion about sexual intercourse – based on a previous note from her usual doctor – and masturbation.

The PCC case did not involve any suggestion of sexual motivation.

Dr Ben-Dom was censured, fined $500 and ordered to pay costs of $160,000.

In a largely unsuccessful High Court appeal last year, Dr Ben-Dom argued his breast examinations were clinically justified.

The High Court, however, pointed to the PCC evidence that there were no (or insignificant) benefits from breast self-examination or clinical breast examinations.

Separately, the HDC investigated a 2018 complaint by “Ms J” that in two consultations – in 2014 with a chaperone and in 2015 without one – Dr Ben-Dom undertook breast examinations to which she had consented but which were not clinically indicated.

GP Tessa Turnbull gave expert advice to then-health and disability commissioner Anthony Hill on that case, and subsequently on a number of others, after he broadened the investigation to include the health centre.

According to Justice Muir’s written decision, Dr Turnbull described the second breast examination on Ms J as a highly significant departure from accepted practice, one which would be viewed with grave concern by Dr Ben-Dom’s peers. It breached a “sensitive examinations protocol” developed following a complaint about Dr Ben-Dom.

Sensitive examinations could only be done if warranted by the clinical presentation, if requested by the patient, or as part of a recognised screening programme. A chaperone must be present for male doctors attending to female patients. All details of the consultation must be recorded.

Dr Ben-Dom’s contract with the health centre was ended in 2017 following an unchaperoned breast examination.

Dr Turnbull said Waikanae Health was diligent about responding to individual complaints and followed recognised complaints procedures.

Mr Hill, however, made strong criticisms of the health centre and referred it to the director of proceedings for a decision on whether to take legal proceedings.

Waikanae Health either failed to see the clear pattern of Dr Ben-Dom’s behaviour, or failed to acknowledge it, Mr Hill wrote in his opinion, quoted in Justice Muir’s ruling.

“It was evident by the multiple complaints that Dr Ben-Dom was failing to follow the advice given to him by Waikanae Health, and that he continued to consider it appropriate to offer and conduct breast examinations that were not clinically indicated, causing significant distress to patients who were subjected to his behaviour.

“Waikanae Health’s inadequate management of what was known to it to be a pattern of highly unacceptable behaviour at best, in an extremely high-stakes context with the potential to cause significant harm to patients – as proved to be the case – is a material breach of its obligation to protect its patients. Dr Ben-Dom’s employing doctors were in close proximity to his behaviour and held considerable information about it, and failed in their primary responsibility to protect their patients.”

Mr Hill found that Waikanae Health failed to provide services in a manner that minimised the potential to harm Ms J, in breach of the code.

But Justice Muir picks apart Mr Hill’s decision regarding Waikanae Health, saying it was too general about the pattern of behaviour, was unsupported by the expert evidence, and lacked reasons where reasons needed to be given.

“In my view it lacks an appropriate foundation in the evidence or may be considered inconsistent with it and can in that context be considered unreasonable.

“I also consider that it unfairly extrapolates from expert observations about lack of insight into manner and tone, conclusions in regard to lack of insight generally which, in turn, necessarily inform the HDC’s conclusion about the extent to which [Waikanae Health] could rely on adherence to the sensitive examinations protocol. As such it proceeds on an error of fact. 

“I also have subsidiary concerns including the adequacy of the HDC’s reasons, but inevitably these are inter-related with the other points made.”

The judge quashed the part of the HDC opinion relating to Waikanae Health and sent it back to the HDC for reconsideration.

New Zealand Doctor Rata Aotearoa has asked the HDC what action it will now take. An answer had not been received by deadline today.

Professor Paterson says it is up to the commissioner to have “the last word”, and it could choose to take no further action.