Rehabilitation features prominently in a recent High Court decision. In Shousha v Professional Conduct Committee [2022] NZHC 1457, Justice Christine Gordon quashed the decision of the Health Practitioners Disciplinary Tribunal (HPDT) to strike off a pharmacist. This is a reminder to tribunals that practitioners’ amenability to rehabilitation requires scrutiny in such cases.
Historically, rehabilitation has been identified as a penalty principle in some tribunal decisions. For example, an analysis of HPDT decisions between 2004 and 2020 found the majority stop short of cancelling practitioners’ registration. However, disciplinary bodies may struggle with assessing the rehabilitation prospects of practitioners and issuing appropriate penalties that focus on restoration to practice, as evidenced by the Shousha judgment.
In upholding the pharmacist’s appeal to the High Court, Justice Gordon determined the HPDT’s cancellation of the pharmacist’s registration was “unduly harsh” because it inadequately assessed her likelihood of rehabilitation [118].
The charges related to mismanagement of a pharmacy and breach of the conditions imposed on its licence following an audit. The pharmacist did not challenge the findings about her misconduct and accepted her mistakes in a letter of apology. But the HPDT was not convinced by her expression of remorse or that she understood why her conduct warranted deregistration [118]. The High Court the tribunal’s assessment of rehabilitation prospects. Examples include dishonesty, misappropriation of funds by legal practitioners and sexual exploitation by health practitioners. disagreed, finding that insight and remorse were both evident in her response to legal authorities.
Rehabilitation across professions
Recent disciplinary decisions across regulated professions similarly stress the rehabilitative function of discipline.
For example, in Complaints Assessment Committee v Pilgrim [2021], the Teachers Disciplinary Tribunal (TDT) stated that “the tribunal cannot ignore the rehabilitation of the practitioner” [55].
Recognising the pragmatic reasons for rehabilitation after misconduct, the TDT added, “There is no merit in depleting the profession from experienced teachers where we consider rehabilitation possible” [56].
Failing to address rehabilitation in a case concerning a lawyer was also described recently as leaving the tribunal’s job “largely undone” (Auckland Standards Committee v O’Boyle [2021] NZLCDT 27) [17].
These decisions reaffirm that disciplinary tribunals must consider rehabilitative penalties when the primary purpose of disciplinary proceedings – protecting the public – can be realistically achieved without cancelling registration.
If the public protection objective cannot be achieved, tribunals need to clearly state the reasons. In Shousha, Justice Gordon noted that the HPDT “did not articulate why that objective [public protection] could not realistically be achieved through a lesser penalty such as suspension with the imposition of appropriate conditions” [85].
Assessment
Historically, tribunals often cited “the level of insight” and “remorse” as relevant to assessing practitioners’ prospects of rehabilitation.
However, the nature and circumstances of the misconduct are also relevant. Ultimately, disciplinary tribunals must be satisfied that following a rehabilitative penalty, the practitioner will be fit to practise. Charges that involve calculated and premeditated misconduct may impact negatively on the tribunal’s assessment of rehabilitation prospects. Examples include dishonesty, misappropriation of funds by legal practitioners and sexual exploitation by health practitioners.
In the recent Lawyers and Conveyancers Disciplinary Tribunal (LCDT) decision Auckland Standards Committee 2 v Kejriwal [2022] NZLCDT 24 that cites Shousha, diverse factors featured in the assessment of the lawyer’s rehabilitation prospects.
The LCDT held that the lawyer was not amenable to rehabilitation, given that she lied to the standards committee and failed to repay funds wrongly taken from her employer. The LCDT reported that the practitioner’s low “resilience to resist pressures” [61] contributed to its strike-off decision.
Although it was accepted there was some evidence of remorse in submissions to the LCDT, “her insight was not so apparent in her dishonest response” [61]. This combination of factors resulted in the lawyer being struck off.
Penalties
We know little about how rehabilitation principles inform tribunal penalties. Rehabilitative penalties range from imposing conditions upon practice to training and to being referred for health treatment. Even suspension is considered rehabilitative as it affords time for reflection and opportunities to seek health treatment.
But tribunals often remain silent on the rationale for, and specific goals of, rehabilitation. This has implications for the consistency and predictability of tribunal decision-making and highlights the need for research into the role of rehabilitation in the disciplinary processes.
In this regard, a three-year research project titled A rehabilitation model for professional discipline has been awarded by the Marsden Royal Society of NZ to explore the experiences of disciplined practitioners, decision-makers and rehabilitation providers across the health, law and teaching sectors.
An overview of this project will be presented at the 3rd Professional Tribunal Conference Research, Practice and New Directions on 10 February 2023.
Dr Marta Rychert, Shore and Whāriki Research Centre, College of Health, Massey University, Professor Lois Surgenor, Department of Psychological Medicine, University of Otago at Christchurch, Professor Kate Diesfeld, School of Interprofessional Health Studies, Auckland University of Technology.
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