The man, who has interim name suppression, was found to have committed professional misconduct at a hearing of the Health Practictioners Disciplinary Tribunal on Wednesday.
The patient did not lay a police complaint and the practitioner has not been criminally prosecuted.
The man worked as an osteopath in the North Island. He had practised for more than 16 years when a female patient began treatment for pain. The date and year the treatment occurred are suppressed.
The woman had three treatment appointments with the man. In all of them, she stripped down to her underwear and bra. She was offered a covering while she was face up, but not while face down.
In her first appointment, the pair were chatty with each other, but they disagree over the tenor of the conversations.
The man says at this appointment, the woman joked about her previous physiotherapist not offering ‘extras’. The man took this to mean ‘sexual extras’, but the woman denies this.
At the second appointment, while the woman was wearing only her bra and underwear, the man referred to her underwear and said: “I bet that keeps [your partner] happy”.
At the third appointment, the woman brought her pre-teen child who lay on the floor of the treatment room playing on their tablet. The child’s age and gender are suppressed.
The man left the room for the patient to get undressed, but returned before she was finished and remained in the room.
During the treatment he inquired about her stomach muscles, lifting the towel and rubbing her stomach.
The patient said nearing the end of the appointment, the man looked at the clock and asked if she would be okay with “a bit extra”. She said yes, and approved again when the man asked if she was sure.
The patient says she took “a bit extra” to mean a longer appointment with extra treatment.
The man disagrees. He says he was convinced the woman wanted a sexual interaction - a view informed by the supposed sexualised conversation at an earlier appointment.
What followed was the man pulling the woman’s underwear to the side and penetrating her with his fingers. The woman says she froze, not knowing how to make it stop. She pretended to orgasm.
The man then made a further distasteful comment to the woman before handing her clothes back.
When she went to pay, the man said “no charge, ACC can pay for that.” She declined to book a further appointment, saying she would “book online”.
She did not return.
‘Foolish old man’
The woman complained to the Osteopathic Council, who referred the matter to the Health and Disability Commissioner. The commissioner referred the matter to the director of proceedings, who lodged proceedings in the tribunal.
During this process, the man wrote a letter of apology to the woman.
“Mine were the actions of a foolish old man who for some inexplicable reason had come to believe a beautiful young woman was favouring him by her special attention,” he said.
“I now see my thinking and actions not only as wrong, but repulsive and ridiculous.”
It took the tribunal around 40 minutes of deliberation to determine the man was responsible for professional misconduct.
The director of proceedings Courtney McCulloch said cancellation paired with censure and an order for costs would be an appropriate penalty.
She said the man eventually accepted that he did not have the woman’s consent.
Regardless of whether or not he did, engaging in sexual activity with a patient is a serious departure from expected standards, she said.
The man’s lawyer Martin Dillon agreed with the proposed penalty, although added that the man admitted professional misconduct which should factor into the decision.
Dillon said the man wound up his practice within a month of the complaint being laid and moved away from the area.
McCulloch said the conduct had a large impact on the woman, who required counselling. There was also a risk of her child having been witness to the sexual conduct which would have greatly increased the harm to both of them.
Dillon sought a permanent name suppression order for his client, covering his name, age and the area where he practised. The application was based predominantly on concerns for the man’s mental health and the potential for “social alienation”.
McCulloch initially took a neutral view, but later told the tribunal the woman is not supportive of suppression.
The tribunal ordered the man censured, cancelled his registration to practice and ordered he pays costs of just over $10,000.
His application for permanent name suppression was declined, although interim suppression will remain in place until 21 days after the release of the written determination.
Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.
