Case commentary: a 'merciful approach' to discipline for a New Zealand lawyer's misconduct.

A recent decision reveals how a New Zealand's disciplinary tribunal promoted justice for an unwell lawyer in a case of professional misconduct. In 2023, the Lawyers and Conveyancers Disciplinary Tribunal (LCDT) applied a 'merciful approach' when assessing the lawyer's misconduct and health issues. In Auckland Standards Committee 3 v Ms W [2023], the LCDT discussed the impacts of reproductive treatment in relation to the practitioner's conduct. This decision is the foundation to compare the disciplinary regime for legal and health practitioners in New Zealand. The article outlines New Zealand's framework for discipline of lawyers, noting the absence of a health pathway. The article discusses opportunities to resolve cases involving impaired lawyers outside the disciplinary system, including benefits and disadvantages of mandatory reporting. While focusing on the legal profession, the discussion is relevant to other professions and examines health-promoting regulatory strategies from other jurisdictions.

Health care providers' early experiences of assisted dying in Aotearoa New Zealand: an evolving clinical service.

BACKGROUND: In November 2021, assisted dying (AD) became lawful in Aotearoa New Zealand. A terminally ill person may now request, and receive, pharmacological assistance (self-administered or provided by a medical practitioner/nurse practitioner) to end their life, subject to specific legal criteria and processes. Exploring the experiences of health providers in the initial stage of the implementation of the End of Life Choice Act 2019 is vital to inform the ongoing development of safe and effective AD practice, policy and law. AIM: To explore the early experiences of health care providers (HCPs) who do and do not provide AD services seven months after legalisation of AD to provide the first empirical account of how the AD service is operating in New Zealand's distinctive healthcare environment and cultural context. DESIGN: Qualitative exploratory design using semi-structured individual and focus group interviewing with a range of HCPs. RESULTS: Twenty-six HCPs participated in the study. Through a process of thematic analysis four key themes were identified: (1) Difference in organisational response to AD; (2) challenges in applying the law; (3) experiences at the coal face; and (4) functionality of the AD system. CONCLUSION: A range of barriers and enablers to successful implementation of AD were described. Adoption of open and transparent organisational policies, ongoing education of the workforce, and measures to reduce stigma associated with AD are necessary to facilitate high quality AD service provision. Future research into the factors that influence responses to, and experience of AD; the impact of institutional objection; and the extent to which HCP perspectives evolve over time would be beneficial. In addition, further research into the integration of AD within Maori health organisations is required.

What do health care professionals want to know about assisted dying? Setting the research agenda in New Zealand.

BACKGROUND: New Zealand recently introduced law permitting terminally ill people to request and receive assisted dying (AD) in specified circumstances. Given the nature and complexity of this new health service, research is vital to determine how AD is operating in practice. OBJECTIVE: To identify research priorities regarding the implementation and delivery of AD in New Zealand. METHODS: Using an adapted research prioritisation methodology, the researchers identified 15 potential AD research topics. A mixed-methods survey of health professionals was undertaken where respondents were asked to rate the 15 topics according to the relative importance for research to be conducted on each issue. Respondents could also suggest additional research areas, and were invited to participate in a follow-up interview. RESULTS: One hundred and nineteen respondents completed the survey. 31% had some experience with AD. The highest rated research topic was the 'effectiveness of safeguards in the Act to protect people'; the lowest rated topic was research into the 'experiences of non-provider (e.g., administrative, cleaning) staff where assisted dying is being provided'. Respondents suggested 49 other research topics. Twenty-six interviews were conducted. Thematic analysis of interview data and open-ended survey questions was undertaken. Six research themes were identified: general factors related to the wider health system; the experiences of health care providers at the bedside; medico-legal issues; the impact of AD; experiences on the day of dying; and the overall effectiveness of the AD system. Key issues for stakeholders included safety of the AD service; ensuring access to AD; achieving equity for 'structurally disadvantaged' groups; and ensuring the well-being of patients, families/whanau, providers and non-providers. CONCLUSIONS: Based on early experiences of the implementation of the AD service, health professionals provide important insights into what research should be prioritised post-legalisation of AD. These findings can be used to shape the research agenda so that research may inform law, policy and best practice.

Professional Discipline for Vaccine Misinformation Posts on Social Media: Issues and Controversies for the Legal Profession.

Misinformation has challenged the rollout of COVID-19 vaccination around the world. In 2021, professional bodies for several regulated occupations (including doctors and lawyers) initiated investigations into the conduct of members who engaged in vaccine misinformation, including on social media. This commentary discusses key controversies surrounding this novel disciplinary issue, with the focus on the legal profession in New Zealand and Australia. We consider the difficulties of defining "vaccine misinformation", differentiating between public and private social media use, giving proper scope to rights of free speech, and challenges in identifying financial conflicts of interest and unethical client solicitation practices (eg, profiting from spreading vaccine misinformation). The chilling effect upon freedom of expression when lawyers are disciplined for their social media posts that are deemed unscientific is discussed.

Criminal Convictions of Disciplined Health Practitioners in New Zealand.

This study investigates the rates and types of criminal convictions encountered by New Zealand's Health Practitioners Disciplinary Tribunal (HPDT) over a 15-year period. Criminal convictions appeared in 24% (n = 101) of cases, with male practitioners (p < 0.01) and pharmacists (p < 0.05) being significantly over-represented. The most frequent types of convictions included crimes against rights of property (33.6%), sexual/morality/decency crimes (21.9%) and misuse of drugs (8.4%). Criminal behaviour settings were evenly split between personal and professional life for medical practitioners (56.5% professional life) and nurses (56.5% professional life) but disproportionately in professional life (85%) for pharmacists. Criminal conviction cases were significantly more likely to result in registration cancellation (p < 0.001) and practice suspensions (p < 0.05) when compared with non-criminal cases, although fewer fines were ordered (p < 0.001). Profession-specific risk factors, alongside how to rehabilitate members of the subgroup who may later seek to renew their practice are areas for further research, are discussed.

Breaches of New Zealand's Health and Disability Services Consumers' Rights: Human Rights Review Tribunal Decisions.

This article illuminates New Zealand's legal response to breaches of rights within the health and disability services context. Alleged breaches of the Code of Health and Disability Services Consumers' Rights may be heard by the Human Rights Review Tribunal. The article describes this body's composition and powers, as well as patterns within the 44 relevant decisions published between 1 January 2002 and 30 June 2019. New Zealand's unique medico-legal system created a distinctive legal response to breaches of the rights of "consumers". The Tribunal decisions in this article relate to breaches of consumers' rights by both registered and unregistered providers. The research contributes to international scholarship regarding how justice is administered when consumers' rights are breached. Also, it contributes to international debates devoted to public protection and complaints resolution, through constructive critique.

Fifteen Years On: What Patterns Continue to Emerge from New Zealand's Health Practitioners Disciplinary Tribunal?

Disciplinary tribunals are deserving of review, in the interests of fairness, transparency and educational value for key stakeholders. New Zealand's Health Practitioners Disciplinary Tribunal (HPDT) determines whether registered health practitioners have engaged in misconduct that warrants discipline. The current study considers patterns regarding HPDT hearing processes and outcomes (2004-2020) (420 decisions), expanding knowledge from a previous analysis of HPDT decisions (2004-2014). The findings suggest that the HPDT has largely upheld its goal of consistency. However, shifts over time have included a reduced rate of appeals, and changing patterns for both the grounds for discipline and penalties applied. Differences in HPDT processes and penalties between medical practitioners, nurses and pharmacists were largely accounted for by the factors of practitioner attendance and legal representation at the hearing. This study contributes to understanding who transgresses, how they transgress and the penalties imposed. Such insights may be applied preventively for the benefit of all stakeholders.

Comparing legislation for involuntary admission and treatment of mental illness in four South Asian countries.

BACKGROUND: Involuntary admission or treatment for the management of mental illness is a relatively common practice worldwide. Enabling legislation exists in most developed and high-income countries. A few of these countries have attempted to align their legislation with the United Nations Convention on the Rights of Persons with Disabilities. This review examined legislation and associated issues from four diverse South Asian countries (Bangladesh, India, Pakistan and Sri Lanka) that all have a British colonial past and initially adopted the Lunacy Act of 1845. METHOD: A questionnaire based on two previous studies and the World Health Organization checklist for mental health legislation was developed requesting information on the criteria and process for involuntary detention of patients with mental illness for assessment and treatment. The questionnaire was completed by psychiatrists (key informants) from each of the four countries. The questionnaire also sought participants' comments or concerns regarding the legislation or related issues. RESULTS: The results showed that relevant legislation has evolved differently in each of the four countries. Each country has faced challenges when reforming or implementing their mental health laws. Barriers included legal safeguards, human rights protections, funding, resources, absence of a robust wider health system, political support and sub-optimal mental health literacy. CONCLUSION: Clinicians in these countries face dilemmas that are less frequently encountered by their counterparts in relatively more advantaged countries. These dilemmas require attention when implementing and reforming mental health legislation in South Asia.

Understanding Client Vulnerability in the Disciplining of Legal Professionals in New South Wales.

Despite the increasing use of "vulnerability" in policy and legal documents, and the emerging scholarly literature about vulnerability and the law, there is little research focused on vulnerability from clients' perspectives. To address this gap, we analysed the New South Wales Civil and Administrative Tribunal (NCAT) and appellate court cases involving vulnerable clients and disciplined lawyers in NSW from 1 January 2011 to 30 January 2019. Our analysis of the cases draws from the "vulnerability theory" literature. We identified the following characteristics of clients for analysis: older age, gender, health impairment, and immigrant status. Twenty-eight tribunal cases and two appellate court cases involved vulnerable clients. Overall, the cases revealed that the relationship between public protection and vulnerability is not expressly discussed by NCAT. To optimise the legislative intent to safeguard the public, the NSW legislation should explicitly include vulnerability as a relevant feature of the disciplinary regime.

Teachers' Health, Wellbeing and Professional Misconduct. An Exploratory Analysis of Cases from New Zealand's Teachers Disciplinary Tribunal 2017-2018.

Teachers' professional misconduct is rarely researched but of great public concern, given the potential impact upon students. Further, international concern has been expressed regarding teachers' wellbeing, including their working conditions. This study investigates the relationship between teachers' wellbeing and professional misconduct. We conducted a thematic analysis of disciplinary cases from the New Zealand Teachers Disciplinary Tribunal (NZTDT) between 2017 and 2018. Of the 41 disciplinary decisions from this period, 34 included references to teachers' health and wellbeing, including psychological stress at work and in their personal lives; psychiatric diagnoses; use of alcohol and other drugs; and emotional maturity. Breach of professional boundaries and inappropriate use of force were the leading reasons for discipline. The analysis illuminates a complex relationship between teachers' wellbeing and discipline, whereby diminished wellbeing may contribute to misconduct and be further affected by the disciplinary proceedings. Preventive strategies could include health-based interventions as part of professional development.

Instances of online suicide, the law and potential solutions.

To understand the social and legal issues posed by suicide-related communications over the Internet (messages of threatened suicide and advocated suicide), this article examines a selection of cases involving different types of online baiting and harassment that illustrate different legal and technological issues. The anonymity afforded by computer-mediated communication allows bullies to harass vulnerable individuals and leak (disclose) their personal information. Computer mediation of communication potentially diffuses responsibility; imposes a temporal asynchrony between signified intent and audience response; and reduces the empathy that might motivate observers or witnesses to intervene and render assistance, factors that make online baiting a serious social, legal and technological problem. Potential actions (both legal and technological) for addressing this problem are outlined.

Consensual Sexual Relationships between Health Practitioners and Their Patients: An Analysis of Disciplinary Cases from New Zealand.

Consensual sexual relationship between health practitioners and their patient are considered one of the most serious breaches of professional boundaries. Prevalence rates are difficult to establish since underreporting may occur, yet media attention may conflate the perception of prevalence. In this study we first reviewed the literature for risk factors for health practitioners and patients, professional standards, and responses of disciplinary bodies. Following this, we quantitatively summarised case characteristics and disciplinary outcomes from a 14-year cohort of New Zealand's Health Practitioners Disciplinary Tribunal proceedings. From the 26 cases identified, four themes were discussed in detail and illustrated with cases. These include: female practitioners working in correctional settings; zero tolerance but no registration repercussions; patient vulnerabilities when help-seeking for mental health issues; and the use of rehabilitative penalties. Despite the difficulties in conducting research on sexual boundary violations, this raises awareness, encourages proactive reporting, and inspires constructive strategies.

Outcomes of Notifications against Psychologists in the New Zealand Health Regulation Context 2004-2015.

Research focusing on disciplined health practitioners is growing though exploring lower level decisions is also important. This study examines the outcomes and characteristics of psychologists subject to formal notifications between 2004 and 2015. Data were extracted from archived notification files (N = 396) held by the New Zealand Psychologists Board alongside publically available decisions of the Health Practitioners Disciplinary Tribunal (N = 13). Annually, <2% of practising psychologists were subject of a notification. Outcomes varied by type of notification but the vast majority resulted in no further action either at initial triage or after further investigation. Notifications involving psychologist scope practitioners and those with overseas qualifications prior to New Zealand registration were significantly more likely to result in further investigation. All 13 prosecutions resulted in a finding of guilt. Further research is needed to explore risk factors and why female practitioners may be over-represented in cases of sexual boundary transgressions.

Practitioner Health Issues Featuring Before New Zealand's Health Practitioners Disciplinary Tribunal: An Analysis of Cases 2003-2014.

Increasingly, the health and wellbeing of professionals is causing concern, particularly when it compromises the interests of those they serve. Often their health issues are reported when their conduct results in professional disciplinary action. In New Zealand, health practitioners who appeared before the Health Practitioners Disciplinary Tribunal for misconduct reported a range of physical and mental health conditions. This study of 288 decisions revealed the professions that reported diverse health issues, including categories of health issues, in published decisions between 2004 and 2014. The study also identified how frequently practitioners self-reported impairment or submitted health evidence from others of their physical and/or mental health status and/or their substance dependence. The study's findings may be applied preventatively for the benefit of practitioners and the people they serve, thereby promoting the Health Practitioners Competence Assurance Act 2003 (NZ)'s emphasis on public safety.

New Zealand's Health Practitioners Disciplinary Tribunal: An Analysis of Decisions 2004-2014.

Established under New Zealand's Health Practitioners Competence Assurance Act 2003 in 2014, the Health Practitioners Disciplinary Tribunal (HPDT) hears and determines charges in relation to 21 health professions. Using publically available information, an exploratory descriptive analysis was conducted of 288 published HPDT decisions between 2004 and 2014 to assess the procedural factors (practitioner and hearing characteristics) and outcome factors (findings, penalties and appeals) relevant to these decisions. In particular, the study compared the two health practitioner groups (medical practitioners and nurses) with the highest number of decisions. The study found that nurses were significantly less likely to have legal representation or to lodge an appeal than medical practitioners, with nurses also more likely not to attend the hearing, have their registration cancelled and not receive permanent suppression. The study also revealed important characteristics of the decisions that are not contained in the summaries available on the HPDT website. These characteristics provide opportunities for future comparison across and within occupational groups. While relevant to health practitioners, lawyers, professional bodies, employers, educators and policy-makers, the findings also contribute to the international scholarship on professional discipline and tribunal decision-making.

Name Suppression Practices of New Zealand's Health Practitioners Disciplinary Tribunal 2004-2014.

Permanent name suppression decisions related to health practitioner disciplinary proceedings can result in debate across various interest groups, including practitioners, the public, the media and complainants themselves. However, there has been no analysis of name suppression patterns, principles and practices in New Zealand since the 2004 legislative reforms under the Health Practitioners Competence Assurance Act 2003 (NZ) provided for the combined regulation of 21 health professions and established the Health Practitioners Disciplinary Tribunal (HPDT) to hear and determine charges relating to those professions. This article reviews health practitioner name suppression debates within New Zealand in light of an exploratory descriptive analysis that was undertaken of 288 published decisions of the HPDT from 2004 to 2014. The study revealed that just under one-half of all cases involved a permanent name suppression application; amongst these, just over one-third were approved. Grounds cited for approving or declining name suppression varied and generally reflected established case law regarding naming principles and the Act's intent. While the public interest dominated as the most frequently cited reason to decline name suppression, the most frequent justification for granting name suppression was the health and wellbeing of various individuals. The findings have relevance for understanding current trends in name suppression, and whether there are changing practices or differences adopted between health practitioner groups.

What makes a child a 'competent' child?

Competence is a vital component of the informed consent process. The perceived level of a child's competence may influence their degree of participation in health decisions that affect them. It is the responsibility of the health professional to gauge a child's level of competence. Child competence, however, is not a static attribute that is linked to age. Rather, it is dynamic, changing in nature and dependent on a child's previous experiences, personal attributes, network of relationships around them and cultural and environmental context. Consequently, there is no single verified assessment tool to assist in the recognition of competence for New Zealand children. Adding to this complexity are the unclear interpretations of New Zealand health legislation and policy regarding whether or not a child can legally consent or refuse healthcare advice and treatment without the consent of a legal guardian. Under the Care of Children Act 2004 and the Code of Health and Disability Services Consumers' Rights 1996, the Health and Disability Commissioner states "a child may consent themselves [to health treatment] if and when the child achieves sufficient understanding and maturity to understand fully what is proposed". This paper poses the question: What is 'competency' and how is this decided? For the purpose of this article, 'child' pertains to those under the age of 16 years.