Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The Director of Proceedings charged that Dr Nealie was guilty of disgraceful conduct in a professional respect in that Dr Nealie's management and treatment of a female patient was inappropriate. In particular:

1. That he was in breach of Rights 2, 4(2), and 4(5) of the Code of Health and Disability Services Consumers' Rights.
   And/or;
2. He entered into a sexual relationship with the patient between November 1996 and March 1997.
3. The relationship between Dr Nealie and his patient was a form of sexual abuse in the doctor/patient relationship and amounted to sexual violation ( as defined in the NZ Medical Council's Statement for the Profession on Sexual Abuse dated June 1994).
4. When attending the patient in response to her suicide attempts Dr Nealie failed to provide her with appropriate medical services or fully record his attendance in the notes.
5. Following the patient's second suicide attempt Dr Nealie failed to attend her or advise her husband of any alternative medical assistance or to arrange any subsequent visit or call to assess her welfare.

Finding: 

The Tribunal held that the admitted facts amounted to disgraceful conduct in a professional respect.

The Tribunal stated that from decided cases and the Medical Council Statements it is clear there is absolutely no tolerance of any form of sexual relationship between a doctor and patient due to the power imbalance and the abuse of trust in such a relationship. The abuse is compounded if, as happened in this case, the relationship interferes with the proper care of the patient.

Penalty: 

Dr Nealie's name was removed from the Register. In addition, Dr Nealie was censured, fined $10,000, and ordered in a supplementary decision to pay 50% ($6,455.51) of the costs and expenses of the Tribunal.

The order prohibiting publication of the name and other identifying details of the patient was continued. Publication in the New Zealand Medical Journal was ordered.

The Tribunal acknowledged that this case had had severe consequences for Dr Nealie but considered the circumstances of this case to be so serious that any period of suspension would be seen to trivialise an enormous miscalculation of judgement. In imposing a mid-level fine of $10,000 the Tribunal acknowledged that removal from the Register was a substantial penalty for Dr Nealie.

Note:

The Tribunal discussed the relationship between the Medical Practitioner's Act 1995 and The Health and Disability Commissioner Act 1994.

The Tribunal also made an evidential ruling on whether the HDC's opinion should be included in the agreed bundle of records. In this case the Tribunal ruled against admissibility of the Commissioner's opinion but it indicated it would be prepared to hear further argument generally on admissibility of the Commissioner's opinions.

Appeal:

Dr Nealie appealed the orders of costs to the District Court. A challenge was made to the following items of costs as they were not incidental to the hearing itself:

• Pre-hearing and post-hearing expenses of Chair and members
• Travel cost
• The accommodation and meals cost
• The telephone and tolls component

The Court considered the Tribunal had the power to charge for the above items. However, the Court considered in this case the proportion of the costs that ought to be paid by Dr Nealie should be 25% not 50% as ordered by the Tribunal.