Vatsyayann [2011] NZHPDT 355 (17 February 2011)

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Level 13, Mid City Tower, 139 Willis Street, Wellington 6011
PO Box 11649, Manners Street, Wellington 6142, New Zealand
Telephone: 64 4 381 6816 Facsimile: 64 4 802 4831
Email: gfraser@hpdt.org.nz
Website: www.hpdt.org.nz

IN THE MATTER of disciplinary proceedings against DR SURESH KUMAR VATSYAYANN, medical practitioner of Hamilton

BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HEARING held in Hamilton on 7-11 and 14-17 February 2011

2. On 21 May 2010, a Professional Conduct Committee (PCC) laid a disciplinary charge against Dr Vatsyayann with the Tribunal under the Health Practitioners Competence Assurance Act 2003 (HPCA Act).

Dr Vatsyayann permitted or was responsible for the enrolment of one or more patients at the Family Clinic without that patient then being aware of the enrolment and/or without that patient giving informed consent to the enrolment, in particular one or more of the patients set out in Schedule 1 to this charge.

2. In the period from June 2006 to April 2009 Dr Vatsyayann permitted or was responsible for allowing a consultation with a patient to be undertaken in the same room as another patient, thereby breaching (or failing to adequately or properly protect) the privacy of the patients concerned, in particular one or more of the patients set out in Schedule 2 to this charge.

3. In the period from June 2006 to April 2009 Dr Vatsyayann permitted or was responsible for allowing his wife, Subash Vatsyayann, who was unregistered and/or unqualified, to provide treatment and/or conduct clinical procedures at the Family Clinic to one or more of the patients set out in Schedule 3 to this charge. In particular Dr Vatsyayann permitted or was responsible for allowing Subash Vatsyayann to:

(e) Conduct herself in other ways so as to represent that she was a qualified nurse, including allowing other staff to represent the same.

4. In respect to the treatment or clinical procedures provided by Subash Vatsyayann (identified in particular 3 above), Dr Vatsyayann was responsible for the clinical records of such treatment or clinical procedures being inaccurate on one or more occasions, in particular in respect to the clinical record in question showing that Dr Vatsyayann had provided the treatment or performed the clinical procedure when he had not.”

6. As to standard of proof, the appropriate standard is the civil standard, that is proof to the satisfaction of the Tribunal on the balance of probabilities, rather than the criminal standard. The degree of satisfaction called for will vary according to the gravity of the allegations. The greater the gravity of the allegations the higher the standard of proof.

7. In the decision of Z v Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1, a majority of the Supreme Court stated that in civil proceedings in New Zealand (including disciplinary proceedings) there is a civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. The Court endorsed the classic passage of Dixon J in Brigginshaw v Brigginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362 to the effect that the affirmative of an allegation must be made out to the reasonable satisfaction of the fact finder. Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular

finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.

8. Section 100 of the HPCA Act defines the grounds on which a health practitioner may be disciplined. The Tribunal has now had ample opportunity to consider the test for professional misconduct under the section, and the approach to it is well settled – examples of the correct approach are found in Nuttall (8/Med04/03); Aladdin (12/Den05/04 and 13/Den04/02D) and Dale (20/Nur05/09D).

9. The section provides that malpractice and/or negligence and/or conduct likely to bring discredit to the profession can constitute professional misconduct.

“The immoral, illegal or unethical conduct or neglect of professional duties. Any instance of improper professional conduct.”

client by a lawyer ... 2 gen criminal or illegal action: wrongdoing, misconduct.”

12. Malpractice, although often equated with negligence, is perhaps better considered a broader concept, capable of encompassing neglect, but also of extending to trespassory conduct in the process of caring for patients in relation to consent, breaches of patient confidence and fiduciary obligations, and other forms of conduct reaching the necessary level of gravity, such as assaulting a patient, swearing at or threatening a patient, a deliberate failure to obey an instruction or sexual misconduct. (see para 23.65, “Medical Law in New Zealand”, 2006).

13. Negligence and malpractice were discussed by Gendall J in Collie v Nursing Council of New Zealand [2000] NZAR 74. His Honour said:

“Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is to be considered acceptable and not mere inadvertent error, or oversight or for that matter carelessness.”

14. Similarly, it is for the Tribunal to decide whether the conduct, if established, would be likely to bring discredit on the medical profession. In the same case Gendall J stated:

“To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard for the question to be asked by the Council whether reasonable members of the public, informed and with the knowledge of all the factual circumstances, could reasonably conclude that the reputation and good standard of the nursing profession was lowered by the behaviour of the nurse concerned.”

15. There are two steps involved in assessing what constitutes professional misconduct:

a. The first step involves an objective analysis of whether or not the health practitioner’s acts or omissions can be reasonably regarded by the Tribunal as constituting:

b. The second step requires the Tribunal to be satisfied that the health practitioner’s acts or omissions require a disciplinary sanction for the purposes of protecting the public and/or warrant maintaining professional standards and/or punishing the health practitioner.

16. This approach to the assessment of professional misconduct under the statute is well established under previous decisions of the Tribunal, and in authorities such as McKenzie v MPDT & Anor [2004] NZAR 47.

18. What is involved in any test for “credibility” was articulated by a Canadian Appellate Court (in Farynia v Chorny [1952] 2 DLR 354 (BCCA)) to be that the real test of the truth of the story of a witness must be at harmony with the preponderance of the probabilities which are practical, and which an informed person would readily recognise as reasonable in that place and in those conditions.

b. Issues of potential bias – to what extent was evidence given from a position of self interest.

c. Internal consistency – in other words was the evidence of the witness consistent throughout, either during the hearing itself, or with regard to previous statements.

d. External consistency – in other words, was the evidence of the witness consistent with that given by other witnesses.

20. Expert evidence was placed before the Tribunal. It will be necessary to consider this evidence in detail, when discussing individual particulars.

21. At this stage, however, it is helpful to record the correct approach to the consideration of expert evidence, which is as follows:

21.1. While expert evidence may guide the Tribunal, the views of experts do not necessarily determine the ultimate outcome (B v Medical Council of

1 Supra. See p15 of the unreported decision, a passage which was approved in F v Medical Practitioners Disciplinary Tribunal supra at para 57; and see Lake v Medical Council of New Zealand, 23 January 1998, Smellie J, HC 123/96, Auckland Registry p30.

Disciplinary Tribunal2 stated that evidence of accepted practice is “highly relevant”.

21.2. The Tribunal may depart from even unanimous expert opinion, if it forms the view that the expert opinion or evidence as to the usual practice of other similar practitioners does not reflect the appropriate professional standards.

21.3. The evidence of expert witnesses has to be carefully evaluated, and the soundness of their opinions has to be scrutinized most carefully – just as is the case in respect of the evidence of any witness. At the end of the process, it must be demonstrated that the professional opinion is capable of withstanding logical analysis; if it does not, the Tribunal may conclude the opinion is not reasonable

22.1. Experts are witnesses who are normally independent of the parties, but they do not have to be. An expert could still be an expert even if that person was a friend or an acquaintance of the party who calls them. A degree of independence, or the lack of it, might well affect the weight that was to be given to the expert’s opinion.4

22.2. Because an expert expresses an opinion on the facts, it is necessary first to

determine what the facts actually are. If an expert gives an opinion on something on which there is no evidentiary foundation, then the expert opinion on that topic was worthless.

3 Loveday v Renton & Anor [1990] 1 Med LR 117, at 125; per Stewart-Smith LJ; Calver v Westwood Veterinary Group

23.1. Because of the nature and/or extent of the breaches in issue, it was necessary for the PCC to place evidence before the Tribunal with regard to each of the persons named on the Schedules 1 to 3. However, not all of the patients involved were able to be located. The possibility of placing statements which had been obtained from some patients in early 2008 was the subject of an interlocutory application, and resulted in determinations of the Tribunal dated

from 10 patients. At the hearing, consent was given for the provision of statements from two further patients. The remainder of the patients, however, gave evidence.

23.2. Prior to the hearing, Counsel who had previously represented Dr Vatsyayann sought leave to withdraw by letter dated 10 November 2010. Leave was granted in the Tribunal’s Minute of 9 December 2010. At the commencement of the hearing, Dr Vatsyayann sought leave to be represented by Ms J Foot (his daughter and a staff member of his practice) as she had a close knowledge of the circumstances which were to be the subject of inquiry. After hearing submissions, and there being no objection from the PCC, by application of the

_{principles discussed by the Tribunal in
Allen}6 _{the Tribunal granted leave
to}

Ms Foot to be Dr Vatsyayann’s “McKenzie’s Friend”, on the basis that she would have the ability to ask questions of witnesses as they were called, to lead evidence from witnesses called for Dr Vatsyayann, and to make

submissions. Leave was also granted for a support person to sit at Dr Vatsyayann’s table with Ms Foot, so that advice could be provided from time to time as was appropriate.

23.3. At the commencement of the case, both parties were asked to confirm that they were ready to proceed. Both parties indicated that they were.

23.4. In view of the complexity of the case, the Tribunal by Minute of 26 January

2011 appointed Mr Upton QC as a Technical Advisor under clause 16 of Schedule 1 of the HPCA Act. His role was to ensure that the Tribunal was advised in a balanced way on all aspects of any legal or procedural issues that arose in the hearing, particularly when one party was not legally represented.

23.5. Prior to the hearing, an application for orders of non publication of name for patients and staff were made. These were the subject of the Tribunal’s decision of 10 November 2010.7 In that decision the Tribunal made permanent orders for all persons except for five patients (who did not at that stage require orders of non publication of name), and three staff members where there was a contest. The Tribunal heard further evidence from those persons relating to name suppression when each of them gave their evidence (in private) and received submissions from the parties at the conclusion of the hearing. Its ruling in that regard is set out below.

23.6. Prior to the hearing and in accordance with the Tribunal’s timetable as to the filing and serving of briefs of evidence, Dr Vatsyayann filed a brief of

However, in the course of the PCC case, it was indicated by Ms Foot that Dr Vatsyayann did not intend to give evidence, when the defence case was presented.

So as to ensure that Dr Vatsyayann fully understood the legal ramifications of such a decision, Mr Upton was asked to provide advice as to the consequences of a practitioner deciding not to give evidence. Mr Upton referred to:

_{23.6.1 Re C (A solicitor)}8 _{where a full Bench of the High Court held that a}

practitioner against whom a prima facie case was made out must be prepared to answer the charge, and may not simply rely on the submission that the charge has not been proved beyond reasonable doubt.

“Lawyers do not have a right to silence in the context of disciplinary proceedings, they cannot simply rely on their silence and claim that allegations have not been proved satisfactorily.”

23.6.4. Mr Upton said that these comments apply generally in the disciplinary field. He stated that the practitioner was particularly at risk of an adverse inference in due course if the Tribunal was satisfied that a prima facie case had been established.

24. The Tribunal accepted the foregoing as a correct summary of the relevant legal provisions. An opportunity was then given to Dr Vatsyayann to consider the issues raised. On 7 February 2011, after the defence case had been opened, Dr Vatsyayann was asked to confirm that he understood the legal ramifications of not giving evidence. He said he did, and confirmed he would not be giving evidence.11

26. The PCC submitted that patients were enrolled at the Family Clinic when they:

26.1. had never been to the Family Clinic and had not signed an enrolment form nor intended to enrol at the Family Clinic;

26.2. had never been to the Family Clinic (nor signed an enrolment form or intended to enrol there) but one of their family members had been to the Family Clinic;

26.3. were a staff member of the Family Clinic but had not signed an enrolment form nor intended to enrol at the Family Clinic;

26.4. had attended a seminar at the Family Clinic but had not signed an enrolment form nor intended to enrol at the Family Clinic;

26.5. had received a flu vaccination through their employer from Dr Vatsyayann but had not signed an enrolment form nor intended to enrol at the Family Clinic;

26.6. had attended the Family Clinic for a one off visit but had not signed an enrolment form nor intended to enrol at the Family Clinic;

26.7. were patients of the previous doctor at the Vercoe Clinic but did not sign an enrolment form or intend to enrol at the Family Clinic.

27. The second particular focused on an assertion that Dr Vatsyayann permitted or was responsible for allowing a consultation with the patient to be undertaken in the same room as another patient, thereby breaching (or failing to adequately or properly protect) the privacy of the patients concerned. It was asserted this was in breach of several professional standards required of a medical practitioner as to patient privacy; in addition to the general applicable standards of privacy, the National Cervical Screening Programme Operational Policy and Quality Standards Manual sets out appropriate standards when a smear is being taken. As some of the cases relevant to the second particular were in respect of consultations for a cervical smear test, it was asserted that Dr Vatsyayann failed to provide an environment that respected the privacy and dignity of his patients, for a variety of procedures, including cervical smear procedures.

28. The third particular related to allowing Mrs Vatsyayann) who it was alleged was unregistered and/or qualified to provide treatment and/or to conduct clinical procedures. The procedures involved were:

29. A further allegation related to an assertion that Mrs Vatsyayann conducted herself in other ways so as to represent that she was a qualified nurse, and that staff were allowed to represent that she was a nurse to patients. This assertion was based on

30. It was the PCC case that there were multiple examples of persons who had received the relevant treatments from Mrs Vatsyayann, when she did not have the necessary qualifications.

31. The final particular alleged that Dr Vatsyayann was responsible for inaccurate clinical records of clinical procedures and/or treatment undertaken at the Family Clinic. In particular with reference to smear procedures undertaken by Mrs Vatsyayann, it was asserted that Dr Vatsyayann was responsible for incorrect clinical records which showed he had provided the treatment or performed the clinical procedure when he had not.

32. The PCC called 36 patients, four staff members, four persons undertaking investigative functions from the Ministry of Health, and two expert witnesses.

33. It was contended for Dr Vatsyayann that none of the particulars could be established.

Ms Foot submitted that the allegations relating to patient enrolments could not be regarded as being within the scope of practice of a general practitioner; in some instances it was asserted that patients had consented, or were aware of, the fact of enrolment; the possibility of IT issues was raised, as was the possibility of human error. In short, it was denied by Dr Vatsyayann that he had breached relevant professional standards.

34. As regards the assertion of two consultations at once in the same room, the response was that privacy standards were maintained by the provision of a curtain, so that consultation with one patient would occur on one side, and a consultation with another patient could occur on the other side; in short it was asserted that there was compliance with relevant standards, and that this particular could not be established.

Mrs Vatsyayann, it was asserted that she had extensive relevant experience; and that having regard to patient needs and expectations it was appropriate for her to carry out such procedures as were proved to have been carried out by her; and that there had been no breach of professional standards therefore, by Dr Vatsyayann. The particular was denied.

36. Finally, with regard to the fourth particular, it was submitted there were no irregularities, and that patient notes had been completed to the best of the practitioner’s ability. This particular also was denied.

37. For the practitioner, evidence was called from four patients, an expert, a representative of the Taiora PHO and a representative of the Waikato DHB. Finally, evidence was also called from Ms Foot relating to the practices of the Family Clinic.

38. The above overview of the cases of each of the two parties is necessarily brief. The Tribunal will consider detailed evidence relating to each particular at the appropriate stage of its discussion of the issues.

39. Although the period of particular focus in the charge was 2005 to 2009, it is necessary to have a good understanding of the development of the Family Clinic. The evidence established:

39.1. Dr Vatsyayann became involved with the practice in 2000; at that time it was known as the Vercoe Clinic, and Dr T Patterson was a GP working at the practice.

39.3. Mrs Vatsyayann undertook the first two years of a nursing course, but did not complete the third. In 2003 she was an assistant to trainee doctors that were working at the Clinic, and later was an assistant to Dr Vatsyayann.

39.4. Ms J Foot had a consultancy company, but from 2001 onwards assisted from time to time at the Clinic working on policies, procedures, and some refurbishment.13 In 2004 she suffered a neurological problem. She concluded existing contracts she had with her consultancy company, and then became more fully involved with the Family Clinic. She was initially an independent contractor, and it appears became an employee as Chief Executive from

39.5. Mr M Foot worked at the Clinic, on and off, from 2001 onwards. He had a primary interest in IT work, but also assisted on other matters such as refurbishing (with Ms Foot), and reception work in the period 2006 to 2008 in late afternoons when he came to collect Ms Foot.

39.6. It appears Dr Vatsyayann took over the Vercoe Clinic, in August 2000 renaming it on 2 October 2004 as the Family Clinic. Also in 2004, the Family Clinic “went free” and from that time did not charge patients. Income was obtained, it appears, from minor surgery clinics, donations from patient and non patient supporters in the community, specialist services, general medical

course of 2004, letters were sent out to patients seeking a clarification as to whether a given patient was registered (the consequence of that being that the Clinic would hold the medical files and Dr Vatsyayann would be the primary

GP) or a casual patient (in which case the registered GP would hold the medical file).15

39.7. In 2005, those working at the practice consisted of Dr Vatsyayann, Mrs Vatsyayann, one registered nurse (CS subsequently replaced by IO), Ms Foot, and a receptionist.

39.8. In 2006, other staff employed were TH (a registered nurse) and TA (who was an IT administrator responsible for keeping the computer systems including the MedTech 32 software) up to date. By this time the receptionist was Louise Colton.16

39.9. In the course of 2005, the practice began to work towards PHO affiliation.

Dr Vatsyayann made an approach to the Toiora PHO about joining the PHO. He made a presentation to a Board meeting of the PHO on 3 March 2005. Following that, a Project Manager of the PHO, Mr A P Higgins, visited the Clinic to find out whether there could be a “cultural fit” with a Maori led PHO. There were several meetings, it appears to facilitate preliminary discussions as to the joinder of the PHO, and a further report to the PHO Board was made on

39.10. Between April and June 2005, Mr Higgins visited Dr Vatsyayann’s practice and undertook checks regarding quality. He satisfied himself that he could recommend to the Board of the PHO that the practice would join. Healthpak advised the Project Manager in late June 2005 what information was needed prior to submitting a register of the practice. Dr Vatsyayann was advised of the requirements to join the PHO. Mr Higgins recalled that Dr Vatsyayann was aware that Government funding to PHOs was based on patient numbers at

the practice; he wanted to know what income would be obtained from the capitation process, but was informed that he would need to wait for the “CIC” process (a preliminary checking process of the patient register) to be completed before income could be determined. Assistance was given by Mr Higgins to Ms Foot at the Clinic to make sure that the entry of information into the MedTech 32 database was correctly undertaken prior to the CIC process taking place. Mr Higgins considered that Dr Vatsyayann and Ms Foot both knew that the practice had to enrol patients, and that patients had to sign an enrolment form. He said he reinforced this to them. It had been hoped that the practice could become a member of the PHO in mid 2005, but this was not possible. In the event, the Family Clinic joined the PHO with effect from 1 October 2005.

40. Having regard to the evidence which the Tribunal heard from a variety of witnesses – patients, staff, and the PHO and DHB representatives - it is clear the practice was well placed to offer free services to a lower socio economic grouping, including a significant population of Maori and Pacific Islanders.

41. The Tribunal makes the following findings with regard to Dr Vatsyayann’s background and responsibilities:

41.5. At all relevant times he held the scope of practice as vocationally registered as a general practitioner. This issue is considered further below.

41.7. For a period he had an administrator level of security access to the MedTech32 database,22 although he ceased to have those privileges in about 200523. This was to avoid a problem which had arisen where he was becoming unduly involved in IT issues, such as setups for new staff members.24 Mr Foot stated that this was necessary because Dr Vatsyayann could not be “told what to do”. The removal of administrator’s rights was to ensure Dr Vatsyayann did not become involved in IT issues that should properly be the responsibility of the person who had specific responsibility for IT system setups.25 Dr Vatsyayann was a proficient MedTech operator, particularly with regard to the medical facets of the programme, and reasonably proficient in all other facets.26

41.8. Staff regarded Dr Vatsyayann as the person who was ultimately in charge on

42. The Tribunal is satisfied on the totality of the evidence it heard that Dr Vatsyayann undoubtedly had overall control of all matters relating to patients at the clinic. Apart from being the person who staff would refer to on clinical issues (since for the most part he was the only medically qualified practitioner) he also directed the staff on

issues such as fees27 and enrolments (as will be discussed more fully hereafter). The public, and particularly patients, perceived the Family Clinic as being “Suresh’s clinic”.28

43. It is necessary to consider a submission made for Dr Vatsysyann as to the extent of his scope of practice. In her opening statement at the commencement of the hearing, Ms Foot submitted that patient enrolment issues were not an aspect of the scope of practice.

“(a) Any health service that forms part of a health profession and that is for the time being described under section 11; and

(b) In relation to a health practitioner of that profession, means 1 or more of such health services that the practitioner is, under an authorisation granted under section 21, permitted to perform, subject to any conditions for the time being imposed by the responsible authority.”

“... a service provided for the purpose of assessing, improving, protecting, or managing the physical or mental health or individuals or groups of individuals.”

46. Section 100(1)(a) relevantly provides that a practitioner may be guilty of professional misconduct:

“... because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred.” (emphasis added)

47. Dr Vatsyayann’s vocational scope of practice is in general practice, which is:

“An academic and scientific discipline with its own educational content, research, evidence base and clinical activity, and a clinical speciality orientated to primary care. It is personal, family, and community orientated comprehensive primary care that includes diagnosis, continues over time and is anticipatory as well as responsive.”

48. Here, the issue of enrolling patients, thereby entitling the practitioner to obtain capitation funding and therefore the ability to offer a free service to a given patient, was an aspect of the provision of the health service which Dr Vatsyayann was permitted to perform and thus the scope of practice.

49. It is also to be noted that the Medical Council of New Zealand (MCNZ) has taken the view that doctors have responsibilities with regard to management and the MCNZ statement “Responsibilities of doctors in management and governance”. This approach was as a result of the important case of Roylance [2] v the General Medical Council29, which reinforced the proposition that a medical practitioner involved in administrative duties could be the subject of findings of professional misconduct.

50. In summary, then, the Tribunal considers that the issues of enrolment are properly considered as matters which arise “in relation to the scope of practice” in respect of which Dr Vatsyayann was registered at the time the conduct occurred.

51. In any event the point may well be somewhat academic, since the ultimate findings which the Tribunal makes, on this particular, involve not only section 100(1)(a) but also section 100(1)(b).

52. In August 2007, the Waikato DHB received three complaints relating to eight patients, alleging they had been enrolled at the Family Clinic without their consent.30

53. On 27 August 2007, the Ministry of Health’s Audit and Compliance Unit was instructed to investigate allegations concerning the unauthorised enrolment of patients

54. In September 2007 the Ministry of Health’s review of PHO registers submitted by the

54.2. 274 patients were listed as having had a consultation at the Family Clinic on that day.32

55. On 6 November 2007, initial enquiries were made by the Audit and Compliance Unit in Hamilton with respect to some of the patients identified on the Family Clinic’s PHO register (as having enrolled or consulted at the Family Clinic on 20 July 2005) together with others who had complained to the Waikato DHB.

56. On 17 December 2007 a search warrant was executed by the Ministry of Health at the Family Clinic, during which investigators received an electronic copy of the Family Clinic’s MedTech32 database, together with hard copy enrolment forms, registration records, records of attendance at health seminars, records of patients who had received influenza vaccinations and other miscellaneous documentation33

57. As a result of analysis of that data, the investigators determined there were a total of

58. Between 18 October 2007 and 1 April 2008, the investigators attempted to contact about 150 of the patients for whom enrolment forms could not be found, in order to determine whether these individuals had consented to their enrolment at the Family Clinic.34

59. As a result of this investigation, it was determined that a number of patients had not

consented to their enrolment at the Family Clinic, including the patients from whom the Tribunal received written and oral evidence.

60. On 9 July 2008, at the request of the Waikato DHB, the Audit and Compliance Unit Investigator Mr O’Callaghan made a formal written complaint to the MCNZ regarding enrolment practices at the Family Clinic.35

61. There was a considerable amount of questioning by Ms Foot of various witnesses as to

the lodging of complaints (or the absence of complaints from patients who were ultimately interviewed) and of the processes conducted by the Audit and Compliance Investigators; and as to allied questions such as whether matters might have been dealt with by way of audit instead of investigation. However, the Tribunal accepts the point made by Mr Upton in his directions to the Tribunal, that the pros and cons of these processes were not matters for this Tribunal36. Rather, the Tribunal was required to consider the allegations of professional misconduct which were placed before it and to focus on those.

62. The Tribunal was not required, for example, to consider an application for stay of the charge on the basis of egregious misconduct on the part of the prosecutorial authority (a possible ground for stay), by reason of oppressive processes.37 In any event, had the Tribunal been required to consider such an application, it would not have been persuaded that the matters referred to by Ms Foot could possibly satisfy the high threshold which the cases make it clear have to be considered.

63. New Zealand’s publicly funded health care scheme requires doctors and practices to enrol patients on their PHO register in order to receive funding for that patient. Primary health care funding is on a per head (or capitation) basis rather than a per visit basis.38

64. A PHO register is maintained and updated by each health care provider. Health care providers submit an electronic datafile every three months setting out information in respect of the patients that are either enrolled or registered with them and for whom they are claiming funding.39

65. Approximately 80% of health care providers use the MedTech 32 database to record

66. A patient can be recorded in the “registered” field of MedTech32, as “casual”, “deceased”, “not registered”, “other IPA”, “registered”, “transferee” or ”visitor”. The date when the patient was “first added” can also be recorded. All such information indicates the patient’s status with the particular health care provider.

67. What was especially important for the purposes of particular one in this case was the enrolment status of a patient, which could be recorded in MedTech32 as either “confirmed enrolment” or “declined to enrol”. This terminology indicated that the patient had chosen to enrol at the health care provider, and as a consequence the health care provider would receive the capitation based funding for that patient.41

68. A key document with regard to enrolment requirements is the Ministry of Health’s

document, “Enrolment Requirements for Primary Health Organisations version 2.2”, published in November 2004. Although the document needs to be read in its entirety it has the following important statements:

“Active enrolment: enrolment with a PHO or provider means that the person enrolling intends to use that PHO or provider as their preferred provider of ongoing First Level Services (as defined in the Establishment Service Specification (ESS)) and enrolment will normally be through this provider...

Information must be provided to people to inform them of the implications and benefits of enrolment so they can make an informed

68.2. Clause 4, which provided for enrolment processes. In relation to patients who have existing registrations with providers, at the commencement of PHO affiliation, the enrolment requirements are:

“Initially, people who are already on PHO provider registers (excluding Casual Users (CU)) will be registered with the provider or PHO and will be aggregated (with enrolled individuals) to form PHO registers. Providers must inform people of the benefits of enrolment at the next convenient point of contact (within three years from the date they were registered with the provider) so they can make a choice as to whether or not to enrol with that provider.” (emphasis added)

A person who is very familiar with these requirements and who gave evidence to the Tribunal is Ms K P Elkington, Portfolio Manager, Planning and Funding, of the Waikato DHB. She confirmed that the “three years” mentioned in the above paragraph is understood to mean three years from the date when that person was initially registered with the practice – as an ordinary interpretation of the rules would suggest.

68.3. As regards new enrolees, the enrolment requirement states that the national enrolment process occurs when a person:

A person should not be invited to enrol on an enrolment register where they are not intending to continue to use that provider for ongoing essential primary care services.

PHOs and practices must have an auditable process to confirm details provided on patient registers.” (emphasis added)

68.4. Finally, in clause 6, it is stated that the maximum period for enrolment is: “Three years is the maximum period of time a person can be enrolled

69.1. Existing registrants may be included in a PHO register at the date of inception, providing they were first registered not more than three years prior to the date of inception. Such a person is then to be informed of the benefits of renrolment at the next convenient point of contact, within the three yer period of initial registration, so they could make a choice as to enrolment. Those were the transitional rules which operated at the time of PHO affiliation.

69.2. New enrolees are to be provided with information as to the benefits and implications of enrolment and are required to sign an enrolment form.

69.3. A practice must have an auditable process to confirm the details of enrolment, which means the enrolment forms need to be held for audit purposes.

69.4. Once a person is enrolled, they maintain that status for a maximum of three years, unless there is personal contact for service with formal re-enrolment.

69.5. Thus the three year period which applies for registrants at the outset is different than the three year period which applies to new enrolees.

70.1. There were 1873 patients for whom there were no enrolment forms, either in

70.2. There was a significant escalation of patients on the PHO register; from 2687 patients in October 2005 to 5020 patients in July 2007. This evidence has to be assessed in the context that typically a sole practitioner would have a PHO register of 2000 persons; this was the evidence of Ms Elkington from the Waikato DHB, whom the Tribunal considered was in a good position to make this assessment, and it accepts her evidence.

71.1. 4543 persons were enrolled without their knowledge or without giving informed consent.

71.2. There was a distinct pattern within the group of 45 patients within the period

71.3. Central to the first particular was the fact that the 45 patients were shown as “confirmed enrolled” in the period to which the particular relates. Analysing the patients according to log on identity, the PCC’s position may be summarised thus:

71.3.1. Using the log on “PUP”: 20 patients on 20 July 2005; and one patient on 22 January 2007.

43 Initially Schedule 1 referred to 46 patients, but one of those was withdrawn by leave in the course of the hearing.

72. As already explained, the Tribunal received evidence, either orally or by written statement, from the 45 patients on Schedule One. It is now necessary to analyse that evidence. It is convenient to do so by reference to the particular categories in which the PCC submitted each could be conveniently placed, which assists in obtaining an overall understanding of the processes that were being used for enrolment.

Patients who had never been to the Family Clinic, although a family member had visited or was enrolled at the Family Clinic:

73.1.2. He was enrolled by his sister-in-law, Ms R. She also gave evidence to the Tribunal and confirmed this.

73.1.5. He was unaware of the enrolment on 20 July 2005; did not give his informed consent, and did not sign an enrolment form. He did not qualify under the transitional rules for registered persons.

enrolment but she did not tell him that this had occurred and he would be surprised if she actually had.

73.2.6. He was unaware of the enrolment, and did not give his informed consent, and did not sign the requisite enrolment form.

73.3.2. The child’s mother and father were patients, but the daughter had been ill from birth, and regularly saw another practitioner. The daughter may have been taken to the Family Clinic on occasions, when her mother was attending, but not for treatment.

73.3.5. No informed consent on the part of her guardian, Ms N, or provision of a written enrolment form was given on or about 24 April 2006.

73.3.6. It was submitted that a form dated 28 October 2008 amounted to a retrospective validation of CA’s enrolment. The Tribunal finds, however, that Ms N had no intention whatsoever of enrolling her daughter at the Family Clinic because the child was being seen elsewhere; and in any event a valid enrolment had to be prospective not retrospective.

73.3.7. CA was enrolled without her mother’s knowledge or consent, and no enrolment form was signed for her prior to enrolment.

73.4.2. A consultation was shown for that date, which Mr LE says in his statement does not relate to him48. He stated his partner had taken their daughter to the Clinic once when she could not get an appointment at the Grand View Medical Centre, the implication being there were no other relevant attendances and none by him.

73.4.5. He was unaware of the enrolment, did not give his consent to enrol, and no enrolment form was signed by him prior to enrolment.

74.1.5. He had no knowledge of enrolment; did not provide informed consent or sign an enrolment form.

74.2.5. She had no knowledge of enrolment, did not provide informed consent or sign an enrolment form; nor could she qualify under the transitional rules for enrolment.

74.3.5. She had no knowledge of enrolment, did not provide informed consent or sign an enrolment form; nor did she qualify under the transitional rules for enrolment.

74.4.5. He had no knowledge of enrolment, did not provide informed consent or sign an enrolment form; nor could he qualify under the transitional rules for enrolment.

75.1.2. The father was Samoan and the mother was not. Her demographic information was incorrectly recorded as Samoan.52

75.1.3. Although the PCC put this example as a case of persons who only attended the Clinic once, it appears that there were two sets of consultations.

shown as first added on 2 April 2004,54 and HE and BE were shown as first added on 14 April 2004; the two boys were the subject of a clinical entry for 14 April 2004, for a check up and a consultation as to circumcision.55

being in or about December 2005, when there was a family attendance to discuss circumcision for the sons; and that not long after this visit it was found that BE and HE’s funding had gone to Dr Vatsyayann, rather than to their normal GP. However, the clinical records place the first consultation as being in April 2004 rather than December 2005.

75.1.8. Mr ME and HE and BE were “confirmed enrolled” on 20 July 2005 under the log on PUP.

75.1.10. There is no doubt that Ms AE did not intend that either herself or any of her family members would become enrolled at the Family Clinic following their consultation in January 2007. She did not learn of the enrolments until later on in 2007 when she attended Glenview Medical Centre and discovered that funding was no longer held there. The enrolment of herself, RE and KE was therefore without her knowledge (in her personal capacity and as guardian for the two sons), informed consent, and signed enrolment forms.

75.1.11. The Tribunal considers there is an absence of evidence as to what occurred in 2004. It cannot rule out the possibility that Mr ME may have attended the Family Clinic with HE and BE and perhaps have consented to registration of himself and two of his sons. If that happened they could have been properly included under the transitional provisions for registered patients. But their status would have to have been “registered”, not “confirmed enrolled”. And they would have to then been asked if they wanted to enrol, within three years of registration (April 2008); there is no evidence this

75.1.12. Consequently, the Tribunal concludes that in respect of all members of this family enrolment occurred without the parents’ knowledge, informed consent, and without signed enrolment forms being completed to enable enrolment on 22 January 2007 in the case of

75.2.3. This was in the context of Mr RL being a visitor to New Zealand between 4 and 14 March 2004.59 He could not recall signing any relevant forms, and it is inherently unlikely that he would have been presented with an enrolment form in March 2004, more than year prior to PHO affiliation.

75.2.5. Mr RL could have been properly included in the PHO Register, but with the status of “registered” under the transitional provisions. But until he enrolled, he could not be included as “confirmed enrolled”.60

75.2.7. The enrolment occurred without his knowledge, informed consent, or by the signing of an enrolment form; nor did he qualify under the transitional rules because he was not seen within three years of registration.

75.3.2. She had a regular doctor elsewhere, but did attend the Family Clinic for blood tests, but had no consultation with the doctor at the Family Clinic.

75.3.4. She did not sign an enrolment form to be a patient at the Family Clinic.

75.3.6. The enrolment occurred without her knowledge, informed consent or by the signing of an enrolment form; nor did she qualify under the transitional rules because she was not seen within three years of registration to see if she wished to enrol.

75.4.1. He was shown as first added on 23 April 2005, apparently the day when he made an appointment at the Family Clinic.

75.4.2. He subsequently went back for a consultation but was told he could not see the doctor and did not receive any treatment; no treatment was recorded.

75.4.5. On 20 July 2005, he was shown as confirmed enrolled under the log on of PUP.

75.4.7. There was no awareness of the enrolment, no informed consent and no signing of an enrolment form; nor did he qualify under the transitional rules because he was not seen within three years of registration to see if

75.5.2. NN was circumcised in February 2005,62 Mr YN had a vasectomy procedure on 25 February 2005.63

75.5.5. Mr YN is shown as first added on 14 January 2005; and NN was shown as first added on 16 February 2005.

75.5.6. By 27 April 2005, it is clear Mr YN had returned to his own doctor, Dr Nutsford.

75.5.7. Both were shown as confirmed enrolled on 20 July 2005 under the log on PUP.64

75.5.9. There was no knowledge of the enrolment, informed consent or the signing of an enrolment form; nor did he qualify under the transitional rules because he was not seen within three years of registration to see if he wished to enrol.

75.6.2. He had an accident. He went to the chemist shop nearby, and was recommended to see the doctor, for an infection in his hand. He had a consultation with Dr Vatsyayann and a prescription was written.

75.6.6. Mr TN could have been properly included on the PHO Register, but only with the status of “registered” under the transitional provisions. Until he enrolled, he could not be shown as “confirmed enrolled”.66

within three years of registration (ie by July 2006); there is no evidence this happened.

75.6.8. He was unaware of the enrolment, did not give an informed consent and did not sign a patient enrolment form.

75.7.1. Mr YT was from XX, and wanted to attend the Family Clinic on a one off basis.

75.7.2. He was shown as first added on 15 October 2002, and it appears that this was when he made an appointment for a vasectomy.

75.7.3. The vasectomy procedure was carried out on 22 October 2002. He then reverted to his own doctor in XX.

and did not sign a patient enrolment form; nor did he qualify under the transitional rules because he was not seen within three years of registration to see if he wished to enrol.

75.8.1. IE (born on 4 June 1992) was taken by her mother for a one off consultation on 18 July 2006.

75.8.4. IE was taken to the Family Clinic on three occasions and on each occasion her mother was asked if she wanted IE to be enrolled as a patient. On each occasion Ms E declined as she wished her daughter to retain her regular doctor and to see Dr Vatsyayann only as a casual patient.

75.8.8. Her mother was unaware of the enrolment, gave no informed consent and did not sign a patient enrolment form.

75.9.1. Ms EE attended the Family Clinic for a second opinion and had no intention of returning.

75.9.5. Ms EE had no recollection of her attendance or the matter on which she required assistance.

75.9.6. The Tribunal cannot rule out the possibility that she signed an enrolment form and has now forgotten doing so.

75.10.1. Ms OE visited the Family Clinic for a pregnancy test and made it clear it was a one off visit.

75.10.5. She had no knowledge of enrolment, did not give an informed consent for enrolment, and did not sign a patient enrolment form.71

75.11.1. Ms LK attended the Family Clinic for blood tests in about May 2005; no consultations were recorded. She says that at no time did she choose to enrol as a patient nor did anyone talk to her about becoming enrolled.

75.11.4. Enrolment occurred without her knowledge, informed consent or the signing of a patient enrolment form.

75.12.1. AY, born 18 December 2001, was taken in by her mother for a consultation regarding an allergy on 27 September 2004.

75.12.2. Ms Y was unimpressed by the doctor who examined her daughter, did not recall filling out an enrolment form, and would not have.

75.12.4. Her daughter was shown as enrolled on 3 August 2006, under the log on SUM.

75.12.6. Her daughter was enrolled without her mother’s knowledge, informed consent or the signing of a patient enrolment form.

April 1997. He recalls having his toe bandaged that year by a doctor at the Vercoe Road Clinic.

75.13.5. He is shown as confirmed enrolled on 21 November 2005 under the log on JOY.

75.13.7. In 2008 he was asked to sign a retrospective enrolment form75 which he did; however, this form does not qualify as constituting a valid enrolment under the enrolment rules.

75.13.8. He was enrolled in November 2005 without his knowledge, informed consent or the signing of an enrolment form; nor did he qualify under the transitional rules for enrolment.

75.14.3. However, she recalls attending the Family Clinic on March 2002 one month before her son was born. This was on a one off basis as she could not attend her regular doctor in WW.

75.14.4. She does not recall signing any enrolment form and it is inherently unlikely that she would have in 2002.

75.14.7. Her ethnicity was incorrectly recorded as NZ Maori; it is to be noted that a greater capitation sum can be obtained for a person whose ethnicity is Maori.

75.14.8. She was enrolled without her knowledge, informed consent or the signing of a patient enrolment form; nor did she qualify under the

Was a patient of a previous doctor at the Vercoe Clinic but had not visited the Family

76.1.1. Mr DL was first shown as added on 5 March 2001; but he had been attending Dr T Patterson for some forty years, including at the Vercoe Clinic.

76.1.2. He states that as far as he could recall he never had a consultation with Dr Vatsyayann; and did not recall signing a form. However exhibit M was an authorization for transfer of clinical file from “Central A & E” not an enrolment form under the PHO Rules.

76.1.3. The final MedTech32 clinical entry for this patient is a consultation on

76.1.4. He was shown as confirmed enrolled on 19 November 2005 under log on FOOT.

76.1.6. He was unaware of his enrolment, gave no informed consent and did not sign a patient enrolment form; nor did he qualify under the transitional rules for enrolment.

76.2.1. She was shown as first added on 25 August 1999, at which time she would have been aged 17.

consultation with Dr Vatsyayann but was not impressed so did not return to the Family Clinic; this was a few years before she moved to Auckland.

76.2.5. She did not recall ever signing any forms at the Family Clinic before moving to Auckland, and it is inherently unlikely that an enrolment form would have been presented to her before doing so.

76.2.8. Enrolment occurred without her knowledge, informed consent or the signing of a patient enrolment form; nor did she qualify under the transitional rules for enrolment.

76.3.3. She was shown as first added on 12 March 2001; the last entry on her notes, a letter, was dated 21 May 2001.

76.3.5. A form dated 7 October 200880 with her name on it was shown to her; it was, however, unsigned. The form, if signed, would not have been valid as it would have been a retrospective attempt at enrolment rather than a prospective one.

76.3.6. She was enrolled without her knowledge, informed consent or by signing a patient enrolment form; nor did she qualify under the transitional rules for enrolment.

76.4.2. Like his wife (the previous witness) he transferred to Dr Revell in about 2001, and had since then attended the St Andrews Medical Centre.

76.4.3. He had never met Dr Vatsyayann or indicated an intention to be enrolled at the Family Clinic.

76.4.5. He had a flu vaccination on 22 March 2001, with the lab results being recorded on 23 May 2001.

76.4.7. He was enrolled without his knowledge, informed consent or by the signing a patient enrolment form; nor did he qualify under the transitional rules for enrolment.

77.1.2. At the time she was working at the Family Clinic she put details into the MedTech 32 system so she could see Dr Vatsyayann if she needed

to; but she did not want to enrol as she did not want all her patient records and all her private information transferred to the Family Clinic.

77.1.5. She was shown as confirmed enrolled on 13 July 2006, under the logon JOY.

77.1.6. Ms Foot stated in her evidence that Ms Colton did not “do a form” and therefore she did not “declare her intent of not wanting to enrol on a form by “Declined enrolment”.83

patient enrolment form was on the practitioner; it was not up to a patient to say he or she did not want to be enrolled.

77.1.9. Ms Colton was enrolled without her knowledge, informed consent or the signing of a patient enrolment form.

78.1. Mr TH was employed as a registered nurse at the Family Clinic from July 2006 to November 2006.

78.2. When he started working at the Family Clinic, he gave his personal details to Dr Vatsyayann; subsequently he found when he went to see his regular doctor that he had been enrolled at the Family Clinic, a course that he had not

78.5. There is no evidence that he signed a patient enrolment form or was aware of his enrolment as a patient, until he subsequently saw his regular doctor.

78.6. He was enrolled without his knowledge, informed consent, or the signing of a patient enrolment form.

79.2. She never attended a consultation at the Family Clinic. She was shown as first added on 1 August 2006.

79.3. She is shown as confirmed enrolled on 25 August 2006 under the log on SUM.

The evidence from Mr NH was that his wife’s enrolment occurred without her knowledge or consent.87

79.4. She was enrolled without her knowledge, informed consent or the signing of a patient enrolment form.

80.1.1. Ms AN was a receptionist at a practice of a specialist in Hamilton, which Dr Vatsyayann would visit from time to time.

80.1.3. On 27 January 2006, there is a script entry relating to a person bearing her name, address and other details; however, the Tribunal accepts her evidence that she never ever attended the Family Clinic. She has only

80.1.4. On one occasion, Dr Vatsyayann gave her a card and encouraged her to obtain medical care from him. She threw the card away.

80.1.7. She was enrolled without her knowledge, informed consent or the signing of a patient enrolment form.

81.1. Ms O’Reilly never attended the Family Clinic, never saw Dr Vatsyayann and never signed any enrolment form at the Family Clinic.

81.5. She was enrolled without her knowledge, informed consent or by the signing of a patient enrolment form.

82.3. Mr NH stated that he could not ever remember attending the Vercoe Clinic, but accepted that it is possible he did, since the information recorded in the clinical note is consistent with some medical issues he had.91

82.6. He was enrolled without his knowledge, informed consent, or by the signing of a patient enrolment form; however, he may well have attended the Clinic. He did not qualify for enrolment under the transitional rules.

83. Two of these three cases are, as it was put by Counsel for the PCC, “a mystery” as to how the Family Clinic obtained and entered details of date of birth, address and so on. It is possible that some of this information was obtained from publicly available data, including the NHI register; however, the Tribunal was not required to resolve this issue, and does not make any findings in that regard.

84.1.2. There was a clinical entry for 20 April 2006, where it is said there was a discussion as to a flu vaccination, type of injection and possible effects, and then the giving of that injection.

84.1.4. Mr SK worked for a company where the employer arranged for a flu vaccination.

84.1.5. He recalled two practitioners administering the vaccination, and was unsure if one of them might have been Dr Vatsyayann.93

84.1.7. He was enrolled without his knowledge, informed consent or the signing of a patient enrolment form.

85.3. He was asked to write his name and address on a piece of blank lined paper, by the doctor. He asked why. He was told that in case there was a problem with the flu vaccine they may need to contact him.

85.4. He discovered, subsequently, that he was no longer enrolled as a patient of his regular doctor. He had no intention of changing practice.

85.6. A similar entry as for the previous witness, relating to a flu vaccination, was also shown for 20 April 2006.

85.8. He had no intention of enrolling at the Family Clinic, and only learned of it subsequently.

85.9. He was enrolled without his knowledge, informed consent or by the signing of a patient enrolment form.

86.2. A similar entry as for the previous two witnesses was also recorded for him on

86.4. He confirmed that he too had received a flu shot at work. He stated he definitely did not sign any enrolment form, and gave no authority for such an enrolment.

86.6. He was enrolled without his knowledge, informed consent or the signing of a patient enrolment form.

87.1.1. Ms EY attended two seminars at the Family Clinic in 2006, taking her husband with her on the second one.

87.1.2. At both seminars she was asked to fill in a form with personal identifying details, including whether she was a patient at the Family Clinic. She indicated she was not.

87.1.5. She was shown as confirmed enrolled on 7 August 2006, under the log on SUM.

87.1.7. She was enrolled without her knowledge, informed consent or by the signing of a patient enrolment form.

96 There were originally 5 but the assertion relating to Ms AW was withdrawn by leave.

87.2.2. He recalled attending the second seminar to which his wife had referred.

87.2.3. His wife completed a form on his behalf, which recorded name, date of birth and address.

87.2.4. The issue of enrolment did not come up at the seminar and he had no idea that he had been enrolled at the Family Clinic until 2008.

87.2.8. He was enrolled without his knowledge, informed consent or by the signing of a patient enrolment form.

87.3.1. She attended a health seminar with her partner; this was the only time she had been to the Family Clinic; she had never attended a medical consultation.

87.3.4. She was shown as confirmed enrolled on 4 August 2006, under log on GRAN.

87.3.6. She was enrolled without her knowledge, consent or by the signing of a patient enrolment form.

87.4.2. On each occasion she filled out a form with details as to name, address and so on. She recalled Dr Vatsyayann emphasising that attendees needed to particularly indicate whether they were a patient of his or not. She indicated that she was not a patient at the Family Clinic.

87.4.7. She was enrolled without her knowledge, informed consent or by the signing of a patient enrolment form.

89.1. Download/upload problem: this assertion arises in respect of the 20 persons who were confirmed enrolled on 20 July 2005, under the log on PUP. Ms Foot in her evidence described this as an “irregularity”.101 She questioned the Ministry of Health investigator who had expertise in relation to MedTech 32, Mr C M Unsted, by asking whether data which had been downloaded to the

Mr Unsted, however, confirmed that the confirmed enrolled status had come about as a result of a manual process within the Family Clinic. The patients’ enrolment status had been changed from blank (ie, there was no previous enrolment status) to “C” for confirmed; and a person operating under the log on PUP had carried out the transaction.102

20 July 2005 to an alphabetical order “almost by time stamp”.103 That is, the transaction had been carried out in a deliberate and sequential way. Consequently, it was not the result of a “download/upload” problem, or interface between MedTech 32 and LinkTech, and nor was it the result of a flawed update to the MedTech 32 software.104

89.2. IT corruption issue: Mr Higgins, the PHO Project Manager who assisted in the

start up phase when the Family Clinic joined the Tiaora PHO, referred to a corruption difficulty which arose. He explained that this involved a download to the PHO from Healthpak of the aggregated PHO registers relating to practices who were affiliated with the Tiaora PHO. The problem involved, for example, “double ups” of patient names; or repeated entries in certain fields such as dates of birth. Mr Higgins explained that he contacted Ministry of Health personnel and sought guidance. The issue was rectified within a couple of weeks, by working on the LinkTech package which the PHO operated. As a result there was “a new upload and download”, ie, upload to Healthpak, and download to the PHO. Then, a corrected version of the patient register was

It appears this problem arose after the Family Clinic joined the PHO, because the problem related to all the practices in the PHO. Because the Family Clinic joined the PHO on 1 October 2005, this issue must have arisen after that date; and is not therefore relevant for any patients shown as confirmed enrolled prior to that date. As already noted, there was a spread of “confirmed enrolled” transactions after 1 October 2005, and indeed through to January 2007. But there is no evidence that the multiple confirmed enrolled transactions considered by the Tribunal as having occurred after 1 October 2005 were due to a corruption issue.

89.3. There was a general assertion that the PHO had not identified an apparent problem with patients being “confirmed enrolled”. As to this:

89.3.1. It appeared the assertion was directed to patients shown as confirmed enrolled prior to joinder, ie, 1 October 2005.

89.3.2. Mr Higgins conceded that the PHO had not recognised patients as being “confirmed enrolled” before joinder.106

89.3.3. It was his point that nobody should have been shown as confirmed enrolled prior to the joinder.

89.3.4. However, Mr Unsted confirmed that there was a dispensation that allowed patients to be enrolled prior to a practice becoming associated with a PHO. Consequently, Mr Higgins’ understanding in that regard was not correct.

know about the details that were relevant to the first particular, namely, whether patients either knew of enrolment, or had given an informed consent for such to occur, or were entitled to be enrolled under the transitional rules. That was the responsibility of the medical practitioner who operated the practice; and all relevant records in that regard were held by the practice.

89.3.6. Consequently, no fault can be attributed to the PHO with regard to patient enrolments that occurred before 1 October 2005.

89.3.7. An email was produced dated 19 July 2005 (from Mr Higgins to Ms Foot) which stated that the Clinic need not worry about having a submission of the PHO register in a “perfect” state. But that email cannot be seen as a justification for showing patients as being enrolled, and leaving them as having that status indefinitely (with the advantageous funding implications for the practice).

89.3.8. Consequently, none of the assertions that were made as the alleged responsibilities of the PHO on enrolment issues were substantiated.

89.4. Operator error or mistake: enrolments on 20 July 2005: It appeared to be asserted that the multiple enrolments which occurred on 20 July 2005 were as a result of operator error or mistake. The following points require consideration:

89.4.1. The first is a contextual one, namely that there were many more patients confirmed enrolled, over and above those which the Tribunal was specifically required to consider. Mr O’Callaghan stated, as already mentioned, that some 269 patients were confirmed enrolled on that date.

consider, all of them were under the log on PUP. Although this was Ms Foot’s log on, she stated that she was not the person who performed the transactions. She accepted, however, it must have been somebody at the Clinic.107

multiple registered persons, whose details were presented on an Excel sheet with reference to surname, given name, gender, date of birth, NHI number and the fact they were registered. The final column was headed “ENROLDSCR”. In this column the word “done” was recorded for many persons. Mr Unsted explained that he had checked whether the names on the querybuilder who were associated with the word “done”, were persons who were recorded as having been confirmed enrolled. He said he could match the two. He said there was quite a pattern, and that they were done on one machine (PPISI) by the person logged in as PUP.109 It is to be noted that the column of the Excel spreadsheet to which reference is being made involves the description of being enrolled – hence “ENROL DESCR”.

89.4.4. This reinforces the conclusion that there was a deliberate process. It was not a simultaneous transaction arising from a computer problem. The Tribunal concludes that the querybuilder document was a record of persons who had been enrolled.

89.4.5. As to Ms Foot’s denial, the Tribunal concludes that whoever conducted the transaction was obviously a person who had IT

considers would have had that competence, apart from Ms Foot, would have been Mr Foot or Dr Vatsyayann.

89.4.6. If these enrolments were a genuine mistake the “mistake” could have been corrected before PHO joinder on 1 October 2005. This did not occur.

89.4.7. Dr Vatsyayann did not give evidence, and so could not be asked about this issue. For reasons already canvassed, however, he was ultimately responsible for these processes, since they related to matters which he controlled pertaining to the provision of proper care including funding, for patients.

89.5. Operator error or mistake: confirmed enrolments after 1 October 2005: Reference has already been made to those patients who were confirmed as enrolled, apart from the category just discussed. The following points are relevant:

89.5.1. Patients were added as confirmed enrolled on a continuous basis through to January 2007, but with a cluster acquiring that status in August 2006.110

placed on ensuring that persons would be enrolled, his concern being that if “a single field was missing the Family Clinic would not receive funding for that patient”. Mr TA stated there was a regular emphasis on updating patient records. He gave an example that on one occasion he asked whether a patient, for whom there was no record of any consultation with Dr Vatsyayann, should be shown as

confirmed enrolled; Dr Vatsyayann told him that he had seen the patient for free, so the patient should be enrolled.111 Mr TA also stated that his role at the Family Clinic involved taking care of the Clinic’s computer network, for example fixing problems with the server, and identifying any problems with MedTech 32 and updating patient records. Everything he learned about these systems was from Dr Vatsyayann.

89.5.3. Mr TH and Ms Colton both gave evidence of a staff meeting in August 2006, where staff were told by Dr Vatsyayann that he was losing a lot of money as the patient details in the computer system were not accurate. Mr TH said that Dr Vatsyayann told staff, in the context of this discussion, that he wanted the enrolment status of all patients in MedTech 32 updated to confirmed enrolled. Following this meeting Mr TA gave him a list of patient names whose details needed updating; and he would have updated some 200 patients from the list he was given. In the course of doing so, he confirmed the enrolment of some patients, not thinking to look for enrolment

was quite particular about the enrolment process, and told her that all patients who wish to be seen for free had to be enrolled at the Family Clinic. She recalled a meeting where emphasis was placed by Dr Vatsyayann on the importance of getting enrolment information completed on the MedTech 32 database. She became involved, as a result, in dealing with lists of patients, who for example, had missing

NHI numbers. She too recalled Mr TA spending long hours even days working through these lists. She knew

that they were not meant to have any missing information on MedTech 32, and so she would complete the enrolment funding section, if it was blank, as confirmed enrolled. This is because Dr Vatsyayann had made it clear that they were to do so.

89.5.4. The increase in confirmed enrolment transactions in August 2006 is significant. The Tribunal finds it resulted from the instructions Dr Vatsyayann gave to his staff. There were a significant number of persons (whose circumstances were considered by the Tribunal) who were then added in that month as confirmed enrolled in direct response to his requirements.

89.5.5. Consequently, it could not be said that the confirmed enrolment transactions had occurred as a result of operator error or mistake, when staff were responding to express instructions from Dr Vatsyayann.

89.6. Comparators: Ms Foot submitted that a comparison needed to be made as to error rates with other providers. Her point appeared to be that such a comparison might show that other providers also had errors in the inputting of patient data. But it is precisely because Ministry of Health investigators considered the Family Clinic was an outlier, particularly as regards the number of patients being shown as confirmed enrolled, that led to it being investigated; the investigation showed that there had been a very significant increase in patient enrolments from 1 October 2005 (2687 patients) to July 2007 (5020 patients), which was significantly greater than a sole practitioner would normally have on a PHO patient register. In any event, the issue is not what

other practitioners were doing, but what the practitioner in this case is alleged to have done, and whether his practices comply with appropriate standards.

89.7. No harm was done: Ms Foot submitted that enrolment issues were essentially of an administrative nature, and that patients were not “harmed” by what occurred. The evidence, however, shows that many patients were very concerned at subsequently discovering that they had been enrolled when they had not given the appropriate approval. They were concerned to find that their regular doctor had lost funding for the provision of services to them; and in some instances their patient file had been transferred to the Family Clinic without their awareness this was occurring. Some patients even complained about enrolment practices to the DHB. Such persons, once they discovered these irregularities, had to go through a re-enrolment process so that they could be correctly shown as enrolled with their regular doctor. And the final point is that incorrect enrolments meant that Dr Vatsyayann was receiving capitation funding for patients who he simply was not seeing; and that is far from the legitimate intentions of a publicly funded healthcare scheme.

89.8. Waiver of the claim by DHB: evidence was placed before the Tribunal to the effect that, in the context of a recovery claim brought by the Waikato DHB against the Family Clinic (in respect of capitation funds paid for patients who should not have been enrolled because there were no signed enrolment forms) a total recovery was not enforced. That is, the DHB decided that where a patient who had not signed an enrolment form had however attended the Family Clinic for consultations on two or more subsequent occasions, the DHB would not insist on recovery. Thus, as Ms Elkington from the Waikato DHB explained, the practice was given the benefit of the doubt. About

She said the DHB wanted to be fair and reasonable in how it dealt with the situation. There was a concern that the PHO could be put in a vulnerable position in terms of continuity. From the DHB’s point of view, an element that had to be assessed was the maintaining of a relationship with a provider, as well as service coverage. Thus a compromise was reached.114

regard to public interest factors which a DHB would obviously need to consider. But the factors which the Tribunal is required to assess for the purposes of professional accountability are not the same. Simply because a civil enforcement agency has seen fit not to press rights that it arguably had, cannot bind a professional disciplinary body which is required to consider a different range of factors in determining whether a particular of a disciplinary charge is established.

89.9. A bewildering process: it was suggested that the capitation based funding process was complex, and difficult for a provider to operate with.

Dr Lack, called as an expert witness, confirmed that in her role as a teacher with the RNZCGP, and as a general practitioner with a Clinic that itself is affiliated with a PHO, she was well aware of the requirement to obtain informed consent from a patient prior to enrolling them with the Clinic. She outlined the process which she normally followed, which was in accordance with the enrolment rules promulgated by the Ministry of Health.

processes involved in this capitation based funding regime was “bewildering”;

it appeared, however, that he was referring to the overall process, and the level of complexity in it. The Tribunal does not need to make any comment about that issue, because the first particular focuses only on one element of the process, which is crystal clear. The cornerstone of the capitation based process, which Dr Revell himself understood very well, is that for capitation based funding to be received in respect of a patient, that patient must first have signed an enrolment form (except for those patients who fall within the transition provisions for registered persons).

It is clear from Mr Higgins’ evidence that this cornerstone requirement was made clear, by him, to both Dr Vatsyayann and Ms Foot in the phase prior to joinder of the Taiora PHO. The Tribunal finds there was no room for any misunderstanding.

90. The Tribunal is satisfied that none of the points raised in defence of Dr Vatsyayann is established.

91. It is further satisfied that in respect of 44 of the 45 patients whose names appear on Schedule 1, each such person was unaware of their enrolment; did not give an informed consent for such to occur, and did not sign the patient enrolment forms.

92. Dr Vatsyayann has provided no evidence to suggest that he was not aware of this important obligation; indeed there is a significant body of evidence from Mr Higgins and staff members that he was very well aware of it.

93. In considering these proved facts in the disciplinary context, it is necessary for the

94. 19 of the patients on Schedule 1 were enrolled on 20 July 2005. Whether it was Dr Vatsyayann himself who did this, or whether it was Ms Foot or Mr Foot, Dr Vatsyayann was responsible for the enrolment of those patients. He was the

initiator of the PHO application; and in charge of the arrangements for funding of his patients. Although these enrolments occurred in the start-up phase, Mr Higgins had explained the requirements and it was up to Dr Vatsyayann to ensure those requirements were carried out.

_{95. By August 2006, the Family Clinic had received a series of quarterly
cheques,}115 _so

that Dr Vatsyayann was more accurately appraised as to the financial ramifications of being part of the PHO regime. Further, the Family Clinic had acquired a working knowledge of the level of detail required for continued enrolment, including the need to correct errors. The Tribunal has found that there was a meeting in August 2006 where Dr Vatsyayann was instructing staff to complete all fields, including enrolment fields, so that funding could be obtained for more patients. The only sensible conclusion is that by then, Dr Vatsyayann was deliberately attempting to increase the number of enrolled patients. He was endeavouring to escalate the extent of his PHO register. And this indeed happened, because by July 2007 there were in excess of

5,000 patients enrolled. Not only were all staff required to assist in this endeavour, but as Mr TA confirmed, Dr Vatsyayann himself was taking part in the exercise of confirming enrolments. This is evident from some of the screen shots which the Tribunal has seen where enrolment transactions occurred under the log on of JOY, which was Dr Vatsyayann’s log on.116 At least, then, from August 2006, Dr Vatsyayann’s attempt to maximise enrolments was deliberate.

96. Whereas the conduct in the lead up to PHO application may simply have been very careless as time went on and Dr Vatsyayann became more aware of the financial implications, his conduct was no longer very careless; it was quite deliberate.

97. Thus, having regard to the period over which the conduct occurred (July 2005 –

116 YL, November 2005; NS, March 2006; TH, April 2006; N, April 2006; RE & KE, January 2007.

January 2007), there was serious negligence, malpractice in the sense that the activity was illegal and unethical, and conduct which brings disrepute to the medical profession.

99. The charge requires the Tribunal to consider whether the particular, considered separately, would warrant discipline. This is a threshold question. The Tribunal considers there are the following aggravating factors:

99.2. It resulted in adverse consequences for patients, and in monies being received by Dr Vatsyayann which he was not justified in receiving from a public source.

100. These factors are sufficiently serious in the Tribunal’s view as to warrant discipline. and amount to professional misconduct.

101. This allegation related to the assertion that between June 2006 and April 2009, Dr Vatsyayann permitted or was responsible for allowing a consultation with a patient to be undertaken in the same room as another patient, thereby breaching relevant privacy rights.

102. Evidence was placed before the Tribunal that there was a large consulting room which contained Dr Vatsyayann’s desk at which he saw patients from time to time at one end; and at the other end there was an examination bed; initially, the only “partitioning” between the two ends of the consulting room was a cupboard, which impeded the view from one end of the room to the other; following discussion at a staff meeting, eventually, a curtain was installed.

103. The Tribunal received evidence from the following witnesses on the privacy issues arising:

103.1. Ms EM: the Tribunal accepts her evidence that on a couple of occasions Dr

Vatsyayann was consulting with other patients in the same room whilst she was having a wound redressed by Mrs Vatsyayann. She explained that there was an entrance to the “curtained off area” from a separate door leading from the kitchen, so she did not have to walk past patients consulting with the doctor. However, she could hear what was being discussed including private details about their health. She would try not to listen and would keep quiet so the patients could not hear her. She did not know if they knew she was there. She looked around the curtain and saw what she presumed to be a husband and wife in African clothing. No consent was obtained from her as to this arrangement.

103.2. Ms AS: the Tribunal accepts her evidence which related to an occasion when she attended the Family Clinic in order to have a cervical smear test taken. She said she was placed at one end of the room; it was not a very big room, and she would estimate that from where she was located on the bed, the doctor’s desk would only be about three metres away.

She said Dr Vatsyayann was also in the consulting room at the time she entered the room. She knew this because although she could not see him through the curtain, she could hear his voice. She assumed he was on the phone as she could not hear anyone else at that stage. She asked the nurse about him being in the same room whilst she was having her smear test taken. The nurse assured her he knew not to come through when the curtains were drawn. She asked whether this was something that happened frequently and she was told that it always happened.

She described a male patient then coming into the consulting area to see Dr Vatsyayann. She was still having her smear test taken. She could not see the other patient as she was behind the curtain, but she could hear him clearly.

He said he had heart problems and pains in his chest, and Dr Vatsyayann asked him what his medication had been. He said he was unable to remember but that his wife was in the reception area and he would get her if necessary. Ms AS was concerned that yet another person would then come into the consultation room while she was having her smear test.

In cross examination, she said that it was definitely a patient who was in the room, though not visible.117 She agreed that a patient coming in with heart difficulties and chest pains would be an emergency.118

2009, Dr Vatsyayann stated that it was “highly unlikely” that there had been two patients in the room at the same time when she was having a smear test. He said “it is not my practice to have two consultations going on at the same time in the same room. This is because consultations between my patients and I are confidential and patients must feel they are able to tell me everything and be free from the fear that other people can hear what they are saying”.119 He suggested that Ms AS must be mistaken. He made a similar statement in a letter to the Chair of the PCC on 15 December 2009.120

And if there was an emergency (the explanation advanced at the hearing though not supported by any evidence) Ms AS’ consent was not requested nor given.

Mrs Vatsyayann in the consulting room. She said there were curtains, but she recalled patients “on the other side which was really weird”. She could hear the patient. Dr Vatsyayann was present. She caught a glimpse of the patient, and then the curtain was properly closed.121 She agreed that a member of staff

person was in fact a member of staff. No consent was obtained from Ms EL for the presence of another patient in the room when she was having an intimate procedure carried out.

103.4. Mrs R: this witness was called for Dr Vatsyayann. She stated that on two occasions she had a consultation at the Family Clinic when another patient was present in the same room. As far as she was concerned she was “quite happy about that”. There was no evidence of any consent being obtained from Mrs R for this practice.

103.5. Mr TH: he stated that the main consultation room was, in his recollection, quite large. He said it was about eight metres long and four to six metres deep. The room was separated by a row of cupboards approximately one metre high. There was an examination table on one side and Dr Vatsyayann’s consultation desk on the other. He recalled a particular instance where Dr Vatsyayann consulted with a patient at his desk while another unrelated patient was resting on the examination table following a procedure. He recalled being concerned at the time and checked patient details, who lived at different addresses and

_{had different names. He recalls this led to the installation of the
curtain.}123

103.6. Ms EN: Ms EN, receptionist from April to May 2009 also recalled that there were occasions when two patients would be seen in Dr Vatsyayann’s

consulting room at the same time. For example, one patient might be receiving an ECG in the curtained off area of the consulting room and

another patient would be seeing Dr Vatsyayann in the other part of the room. Frequently the door would be left open and staff in the staff room would hear the patient consultation taking place. She knew the persons were not the same members of a family. She did not understand that this practice was because there were emergencies.

103.7. Ms L Colton: she stated she was aware there was a curtained off area in the consultation room. It would be used to see one patient whilst Dr Vatsyayann was consulting with another patient at his desk. Sometimes she would have to get a script signed, or Dr Vatsyayann’s signature, and she would see that one patient was behind the curtain while he was consulting with another. She said

103.8. TA: he stated that when he was at the Clinic (May 2006 to October 2006) he noticed that there were frequently two consultations taking place in the same room. Mrs Vatsyayann would often undertake a procedure with one patient on the bed, whilst Dr Vatsyayann would consult with another patient in the room. He could not recall whether the bed area was curtained off. It was also common for Dr Vatsyayann to leave the door open when consulting with patients.

104. From the forgoing, the Tribunal accepts the overwhelming evidence of the above witnesses. It is satisfied that the practice (notwithstanding the statement made by Dr Vatsyayann in his correspondence) was a regular practice which extended over a

procedures, sometimes as intimate as the taking of a smear, would be performed behind what was only a curtained off area on an examination bed.

_{105. The MCNZ booklet “You and Your Doctor”
provides}125 _{that a patient’s
personal}

dealings with their doctor ought to be totally private. “Good Medical Practice” provides126 that doctor’s should to respect a patient’s right to confidentiality and privacy.

106. The Health Information Privacy Code 1994 applies to any person or organisation providing or holding themselves out as providing a health service to the public. Right

1 provides that a person is to be treated with respect, and in particular Right 1(2) states that “every consumer has the right to have his or her privacy respected”. Also relevant is Rule 11(2)(b) of the HIPC which provides that a health agency that holds health information must not disclose that information unless the agency believes, on reasonable grounds, that the disclosure is authorised by the individual concerned.

107. Dr I St George, one of two expert witnesses called for the PCC, considered that by allowing a patient consultation to occur in the same room and at the same time as another patient consultation, Dr Vatsyayann was not respecting patient privacy. He considered that most general practitioners would regard the practice referred to in the evidence as a “wide departure” from proper practice.

108. Dr L Lack also gave expert evidence on this topic, concluding that there were breaches of standards. She also referred to the issue of a patient receiving a cervical smear test in the same room as another patient, instancing AS’ evidence. She said that the Ministry of Health’s National Cervical Screening Programme Operational Policy and Quality Standards Manual relating to the “smear taking environment” provided

that cervical smear taking services should be provided in an environment that respects

the autonomy and dignity of women, and which is private, secure and warm. She considered this should apply to the whole consulting room. As AS was required to share a consulting room with other people unrelated to her care, she considered that the Ministry of Health’s standards were not met. Dr St George gave similar evidence.

109. Dr Revell (called for Dr Vatsyayann) stated that if a patient did not consent to his or her consultation taking place at the same time and in the same room, such would constitute a breach of privacy and fall below the standards expected of a medical practitioner in respect of patient privacy.

110. He said that in the case of emergencies it might be acceptable to have more than one patient in the consulting room. However, he accepted that if the consultation was not an emergency situation and the patient had not give consent, having two patients consultations conducted simultaneously in the same room would fall below the standards expected of medical practitioners in respect of patient privacy.127

111.1. Emergencies: this has been discussed above – there is no evidence that any of the cases considered were emergencies. Even if this was so, consent would have to be obtained; and there is no evidence this occurred.

111.2. Patients involved could not hear each other: the evidence was that they could, which is why they gave the evidence they did, and why they were concerned about the practice. The patients involved were clearly embarrassed, particularly those having intimate procedures. There is a distinct lack of security involved in a curtain only for a partition, in the circumstances outlined

111.3. Evidence from a patient such as Ms R, who indicated that she was happy that she was in the same room as another patient, was also referred to.

But this is not the point. Clear evidence was given of many instances where patients and staff were concerned about the practice. The patients’ consent had not been obtained. It is those patients for whom the concern arises.

111.4. There was some discussion, particularly from Dr Revell, making a comparison with A & E cubicles. Such a series of cubicles is a different situation. There a patient may well understand that privacy may be compromised, although the question of whether such is appropriate it not a matter the Tribunal was required to determine in this case.

112. In the circumstances outlined in the evidence, consent should have been obtained at the very least from each of the patients involved. Particularly serious were consultations such as smears or the removal of an IUD, which are normally very private and intimate procedures where proper privacy should be a priority.

113. The practice of a cupboard only amounting to a partition, which clearly did not provide complete visual privacy, was obviously inadequate; and the subsequent curtaining did not provide proper auditory protection.

114. A complaint was laid in 2006. Insufficient steps were taken to remedy the problem; in particular, patients were not accorded the basic obligation that should have been offered to them, that is the obtaining of consent.

115. The Tribunal is satisfied that this particular is established in respect of each of the named persons in Schedule 2; and further established in respect of one or more patients of unknown identity, as detailed in the evidence given by Mr TH, Ms EN, Ms Colton and Mr TA.

116. The Tribunal is satisfied that the established conduct constitutes negligence, and

117.1. This was a practice that went on for a very long time (June 2006 to April

117.2. The breach was particularly serious where intimate examinations were involved.

117.3. Dr Vatsyayann denied the practice, when it was raised with him in the context of inquiries by the PCC.

118. Considered on its own, this particular warrants a finding of professional misconduct.

Particular 3: allowing an unregistered and/or unqualified person to provide treatment and/or conduct clinical procedures:

119. The third particular alleged that between June 2006 and April 2009 Dr Vatsyayann permitted or was responsible for allowing his wife, Mrs Subash Vatsyayann, who was unregistered and/or unqualified, to provide one or more of certain treatments.

120. It is convenient to consider that evidence in the categories in which the patients were grouped in Schedule 3.

121.1. Ms JN: the case for Ms JN was put on the basis that Mrs Vatsyayann performed cervical smear tests on 31 July 2007 and 19 December 2007.

A difficulty with the case in relation to the smear taking was her recollection that Dr Vatsyayann came in whilst the smear was being taken. She was unable to be specific as to which of her smear taking consultations this occurred. It

some years after the event. The Tribunal concluded that because of this difficulty, it would not be appropriate to conclude that Mrs Vatsyayann had undertaken the smear without Dr Vatsyayann being involved in some way. The allegation in respect of Ms JN is therefore not established.

8 November 2006; and this is recorded in her medical record (although, as will be considered below inaccurately).129 Ms EM was quite clear that Mrs Vatsyayann carried out the procedure, Dr Vatsyayann having left the room. She recalled other details of the procedure, including the presence of her children during it.

_{121.3. Ms AD:}130 _{in her statement
of 22 June 2009, given to a Ministry of Health}

investigator Ms V Blake, Ms AD referred to a taking of a single smear. By reference to her medical record, this appears to be a smear procedure undertaken on 12 January 2009.131 Of this smear she said that she went in and there was a curtain dividing the room in half. She said that the doctor’s partner/wife, who she thought was a nurse, undertook the procedure. However in the course of the procedure she called out to the doctor in her own language, and “... he came around and had a look at me. They spoke in their own language again and he then left and she finished the process”. It appears there was some limited involvement in this particular procedure by Dr Vatsyayann. To the extent that may imply Dr Vatsyayann was overseeing the process, the particular is not established for this patient.

121.4. Ms AS: Ms AS gave evidence of a procedure undertaken on 1 October 2007.132

described as “an Indian woman who looked to be in her fifties”; this was obviously Mrs Vatsyayann. She described the fact that three

or four attempts were made to get a sample, and that the nurse then told her she had had trouble getting a sample. Subsequently she was called to advise that another sample would be needed. She decided to have another specimen taken elsewhere. The Tribunal finds the procedure was undertaken by Mrs Vatsyayann.

121.5. Ms EL: on 1 November 2007, Mrs Vatsyayann removed an intrauterine contraceptive device and performed a cervical smear test.133 She had seen Dr Vatsyayann on earlier occasions, but then saw Mrs Vatsyayann, whom she described accurately. She understood the person was definitely Dr Vatsyayann’s wife. The Tribunal finds that the smear test was performed on this occasion by Mrs Vatsyayann.134

122. Accordingly, the evidence establishes that three named patients had smears taken by

Mrs Vatsyayann alone. However, Schedule 3 also required consideration of the possibility that Mrs Vatsyayann had given smears to one or more patients of unknown identity, as detailed in the evidence given by Mr TH, Ms EN, Ms Colton and Mr TA. Their evidence was:

_{122.1. Mr TH: one of Mrs Vatsyayann’s main roles was to conduct
cervical smears.}135

122.2. Ms EN: of the variety of medical procedures Mrs Vatsyayann performed, these included cervical smears. Often there were specific patients who requested Mrs Vatsyayann because she was a female.136

122.3. Ms Colton: she recalled that Mrs Vatsyayann was responsible for all of the

cervical smears, being a procedure where a woman might not feel comfortable seeing a male nurse or doctor.137

123. There being no contrary evidence from Dr Vatsyayann, the Tribunal finds that Mrs Vatsyayann also carried out cervical smears for one or more patients of unknown identity.

124. Turning to the issue of Mrs Vatsyayann’s qualifications for doing so, the evidence established:

124.1. The Ministry of Health’s National Screening Unit sets the standards of practice for cervical smear takers in New Zealand. The website has a publicly available link to a statement regarding smear takers. Inter alia the statement states:

“A smear taker is a registered health professional such as a medical practitioner, registered nurse, enrolled nurse or registered midwife. The smear taker has successfully completed a course of training as a smear taker and has demonstrated competency against the national standards.

All smear takers are required to complete cervical screening training through one of the training programmes listed below:

124.2. Mrs Vatsyayann was not registered in New Zealand as a medical practitioner, nurse, or enrolled nurse.

124.3. Turning to the question of a lay smear taker, it was possible until April 2008 for a trainee lay smear taker to complete a health course under NZQA Unit

that up to that date, a lay person could obtain the relevant qualification, providing they had successfully completed a relevant health course prior to the entry, for example a family planning bridging course for lay smear takers.

124.4. There was no evidence that Mrs Vatsyayann had undertaken this course; consequently she did not fulfill the requirements of a lay smear taker. She had not completed the formal training, and she had not sat the clinical assessment and obtained a relevant certificate of completion. Further, she was not shown on the National Screening Unit’s Register of approved smear takers, that is, was not registered as having completed the required cervical smear training

124.5. After April 2008, it was no longer possible for a lay smear taker to administer smears. There is no evidence before the Tribunal of a particular patient being given a smear test by Mrs Vatsyayann after 2007, although there is evidence from the staff to that effect, particularly Ms EN who was the receptionist in

124.6. On 30 June 2008, the National Screening Unit wrote to Dr Vatsyayann stating they had been advised that patient cervical smear taking was being carried out by Mrs Vatsyayann who was not a GP, nurse, or qualified smear taker.141

124.7. On 9 April 2009, the Ministry of Health wrote again to Dr Vatsyayann, noting

that it had not received a response to its earlier letter, or to a follow-up phone call of 17 July 2008. An urgent response was requested. None was given.142

124.8. On 22 May 2009, a further letter was written to Dr Vatsyayann; this resulted in

had been difficulties with the lay smear taker in accessing training, because she “was told she had to be a registered nurse”. This was followed up by an email from Ms Foot, who appeared to imply that an application had been made for Mrs Vatsyayann to attend a course but her application was rejected because Mrs Vatsyayann was not a nurse; if so, this must have occurred after the change in the rules which meant there could no longer be lay smear takers, ie, from approximately mid 2008.

124.9. It would have been a very simple matter for Dr Vatsyayann to have established the requirements for Mrs Vatsyayann to become an approved lay smear taker. The relevant requirements were all easily available on the Ministry of Health website, linked to the NCSP website. Dr Vatsyayann could easily have arranged for Mrs Vatsyayann to undertake the relevant course until mid 2008. He should have ensured that she did not take smears until the relevant qualifications had been obtained. From mid 2008, she would have to have completed her training as a nurse, and undertake the relevant smear-taking qualification.

124.10.There is no evidence whatsoever that Dr Vatsyayann ensured that she was either qualified; or if not qualified that she should not perform smears. The only conclusion available to the Tribunal is that he permitted Mrs Vatsyayann to conduct these procedures on his patients.

124.11.As Dr St George stated, an inexperienced or unqualified smear taker may put women at risk by taking inadequate smears without a high false negative rate, which may allow abnormalities to progress undetected to invasive cancer. He said permitting Mrs Vatsyayann to take cervical smears was a serious

that significant pathologies might be missed, and consequently there was a potential for patients to be harmed. She also thought there was a departure from acceptable standards.

124.12.Ms Foot appeared to submit that because Mrs Vatsyayann regularly carried out the procedures in question, she was therefore experienced, and the breach was not significant. She appeared to submit that patient interests prevailed, and it was important for them to have these procedures carried out. Dr Revell also suggested that the level of Mrs Vatsyayann’s knowledge would surpass the great majority of registered nurses. He said that Mrs Vatsyayann “greatly qualified for taking smears by virtue of her sex alone”. He also relied on the fact that it was difficult, he said, for Dr Vatsyayann to get trained RNs to work in the practice, especially those with smear certification, and that Dr Vatsyayann believed Mrs Vatsyayann was better than no female smear taker at all. He also suggested that it was legal for women to do smears on each other with consent; and that he understood there was full consent for each

124.13.The Tribunal does not regard any of these statements as providing a satisfactory answer. The careful regulatory regime that has been set up in respect of smears, is for a good and proper reason; and it could never be in the public interest for individual practitioners to decide that they would not comply with them. The Tribunal does not consider that the various points made by Ms Foot and Dr Revell provide a legitimate excuse. The departures involved were significant.

125. The Tribunal accepts the evidence of Dr St George and Dr Lack. The subparticular is well established.

126. The assertion that Mrs Vatsyayann gave vaccinations when not qualified to do so arose in respect of seven named patients, being the mothers of children who were vaccinated:

126.1. Ms YW: the evidence is uncontradicted that Mrs Vatsyayann administered multiple vaccinations to her son and daughter between 7 March 2007 and 17

April 2008. She stated that Mrs Vatsyayann always performed vaccinations by herself, and Dr Vatsyayann was not present. She was told to “hang around in my car for five minutes” and to come in if anything happened. If not she was allowed to go – she was not required to remain on site for 20 minutes, as would have been the appropriate practice.

_{126.2. Ms IL:}144 _{multiple
vaccinations were given for Ms IL’s two children between}

28 April 2008 and March 2009. She described the doctor’s wife as always performing the vaccinations; she would ask for an appointment with “the nurse”, which would be given.

administered seven immunisations to Ms IN’s daughter. She was clear in her evidence that the person who administered the vaccines was a “female Indian” who was described by others as “the nurse”.

vaccine, because on the occasion of the January 2007 immunisation, the immunisation certificate was not completed, and she had to go back and have Mrs Vatsyayann complete the certificate as the daughter’s school had asked for a copy of it.146

2008 to October 2008. They were given by Mrs Vatsyayann, who Ms AD described as “the doctor’s partner/wife”, who she thought was a nurse. She was always directed to attend Mrs Vatsyayann.148

and February 2009. Her daughter received her vaccinations from someone whom she presumed was a nurse – a “short Indian woman who looked to be in her fifties”; Ms YA assumed this was Dr Vatsyayann’s wife. She would always do the vaccinations by herself.

_{126.7. Ms IA:}150 _{she took her
daughter to the Family Clinic for five vaccinations,}

between January 2008 and October 2008. She stated that the woman who gave the vaccinations was “the well known nurse there”. The person who gave the vaccinations was “about 50”, and was an Indian woman. This was Mrs Vatsyayann.

127. Accordingly the Tribunal is satisfied that vaccinations were given by Mrs Vatsyayann, in respect of the children of seven named patients. Additionally, the Tribunal was required to consider whether one or more patients of unknown identity were also the subject of vaccinations. This was established by the evidence of:

127.1. Mr TH: he said one of the Mrs Vatsyayann’s main roles was to provide child

127.2. Ms EN: she confirmed that Mrs Vatsyayann performed the administration of vaccines.152

127.3. Ms Colton: she confirmed Mrs Vatsyayann was responsible for vaccinations.153

128. The Tribunal is satisfied from the totality of the evidence that Mrs Vatsyayann administered vaccines for patients other than the seven named patients it considered. This is bourne out also, by the issues relating to standing orders which are about to be discussed; that documents of this kind were created at the Family Clinic because Mrs Vatsyayann was regularly administering vaccines.

129. Turning to the issue of Mrs Vatsyayann’s qualifications for the administration of vaccines, the Ministry of Health’s Immunisation Handbook (2006) sets out the professional standards for vaccinators. Section 2.1 provides that as vaccines are prescription medicines they can only be administered by:

129.4. a person authorised to administer the medicine in accordance with a standing order;

129.5.1. a person who is authorised by either the Director-General of Health or a medical officer of health under Regulation 44D of the Medicines Regulations (1984).

129.5.2. the only category for which Mrs Vatsyayann might have qualified, was if she was administering vaccinations in accordance with a valid standing order.

130. Regulation 5 of the Medicines (Standing Order) Regulations 2002 provides that a standing order must (inter alia) specify the level of competency required of the class of persons permitted to supply or administer the medicine under a standing order, including any training to be undertaken, where there is no registration authority for that class of persons or where the registration authority has not set any level of competency.

131. Because Mrs Vatsyayann was not a registered nurse or medical practitioner, there was no relevant registration authority. Consequently the standing order had to specify an adequate level of competency.

132. In the course of the Ministry of Health investigation, Ms Blake (a senior enforcement advisor) received from the Taiora PHO a copy of a dependent injector standing order dated 15 August 2008. Although incomplete, it contained the following:

Medical background (either NZ qualifications or overseas equivalent). IMAC refresher course attendance (yearly).”

133. Late in the hearing, Ms Foot produced copies of further standing orders, including an apparently different version of the standing order dated 15 August 2008 (again signed by Dr Vatsyayann), and also versions for 1 August 2006 to 31 July 2007, and 1

134. Mr Heron for the PCC submitted that no weight could be given to the standing orders which apparently related to the years 2006-2007, and 2007-2008 because:

134.1. In respect of the first such document, the footer page bore the date 15 August

134.2. On page 3 of the document, reference was made to the completion by Mrs Vatsyayann of a “detailed competency assessment”, apparently a reference to an immunisation information course Mrs Vatsyayann undertook on 14,

134.3. The rationale for the standing order was that there was an absence of a registered nurse on site; but in the period in question there were two registered nurses on site, Mr TH and IO.

135. Reference has already been made to the correspondence sent to Dr Vatsyayann by the Ministry of Health: the letters of 9 April 2009 and 22 May 2009 stated that the Ministry had received reports that Mrs Vatsyayann was giving vaccinations, and raised questions as to whether there were standing orders in place.

_{136. The Tribunal is very concerned that the documentation placed before
it}155 _{was an}

attempt (retrospectively) to put standing orders in place after the event, because of the concerns raised by the Ministry of Health.

137. The alternate issue, however, is whether, in any event, Mrs Vatsyayann met the competency requirements which the purported standing orders described. The documents apparently prepared for 2006-2007 and 2007-2008 had similar requirements for credentials, although with some slight variations. Thus:

137.1.1. There was some evidence that Mrs Vatsyayann had undertaken an immunisation information course in 2002, but she was refused entry to sit the exam.156 Mrs Vatsyayann herself gave no evidence, and the reason for this was not explained.

137.1.3. A certificate as to completion of an immunisation information course, dated 16 April 2009, was produced for a course which took place on 14 and 15 August 2007; but this was only for health promotion education purposes, and not for vaccinator training. The certificate specifically states that the course was not a “vaccinator training course”.

137.2. The first two documents stipulated “IMAC certification (or alternative approved by IMAC for non registered practitioners)”. There is no evidence of “certification” by IMAC; or that IMAC had approved an alternate for non registered practitioners.

137.3. In each instance, there was a requirement for “medical background (either NZ qualifications or overseas equivalent)”. Mrs Vatsyayann did not have a medical background. She had obtained a dental qualification in India, but that is not a medical qualification. Consequently, the criteria of “medical background” could not be established. Nor did she have the “overseas

157 Lack, Tab F, para 1.4, p402. The vaccinator remains current with developments in immunisation theory, practice and policy with at least four hours of self directed learning or immunisation education/training every two years.

8.159 In any event, this qualification was not included for the subsequent years.

137.5. For the standing order 2008-2009, there was a requirement of attending an IMAC refresher course annually; there was no evidence that this was completed in that period.

138. In short, the Tribunal is not satisfied that the requirements stipulated in the various versions of the standing order were met by Mrs Vatsyayann, even if those documents could be considered as valid.

139. Dr St George stated that it was a significant departure from accepted standards for Dr Vatsyayann to have allowed an unqualified person to administer immunisations. Such persons could pose a serious risk to patients. Immunisations pierce the skin and can therefore be misplaced or introduce infection. An adverse reaction can arise, which could cause anaphylaxis. Dr Lack considered that such would have been a major departure from acceptable standards. She referred to the risks of seizures and allergic reactions – an allergic reaction can be fatal. The Tribunal accepts this evidence.

140. Dr Revell stated that criticisms such as Mrs Vatsyayann undertaking immunisation, given the background and training she had, could be seen as “patch protection”. 160

On the evidence before it, the Tribunal is not satisfied that Mrs Vatsyayann’s

competence was such that it could possibly conclude that this comment is justified.

160 The Tribunal considered the question of whether a dentist, who would obviously be proficient in administering injections for dental purposes, could therefore be considered proficient for other purposes – but training for the administration of

injections in the mouth would not necessarily prepare a vaccinator sufficiently for administered injections in other parts of the anatomy.

141. Of particular concern is the evidence that in the initial part of the period to which the particular related, patients were not being required to wait for 20 minutes in the waiting room, so as to ensure there was no adverse reaction, but were simply being told they could wait for a short time, five minutes, in a vehicle outside the surgery. Although this issue was subsequently addressed, that it happened at all indicates a lack of proper training and/or oversight by Dr Vatsyayann.

143. It was alleged that two patients receive Depo-provera injections from Mrs Vatsyayann:

143.1. Ms YW: Ms YW recalled the giving of Depo-provera contraceptive injections by Mrs Vatsyayann. Her notes record that this happened on 2 May 2007, 26

October 2007 and 16 January 2008. She was not challenged on the assertion that Mrs Vatsyayann administered the injection. Unfortunately, following the May 2007 injection, she fell pregnant in July 2007, and her pregnancy was terminated at Hamilton Hospital. The Tribunal cannot rule out, however, that the Depo-provera injection possibly failed because she was pregnant at the time the injection was given. It notes the giving of such an injection involves the taking of a proper history which a trained nurse would be expected to undertake.

143.2. Ms JN: Ms JN stated that the “Indian woman”, whom she thought was a nurse, gave her Depo-provera shots on a number of occasions. Ms JN was not challenged on this evidence. She said that she saw the doctor prior to having

Mrs Vatsyayann administered them. Ms JN’s notes confirm that such an injection was given (within the period of the charge) on 27 February 2007,

144. No staff member gave independent evidence of Mrs Vatsyayann undertaking Depo- provera vaccinations, and so no finding as to further unnamed patients is made.

145. As to whether Mrs Vatsyayann was permitted to give such an injection, because the Depo-provera injection is classified as a prescription medicine, then the only basis on which she could have done so was by virtue of a standing order.

146. Having regard to the period under consideration (proved to be 2 May 2003 to 14 July

2008), this subparticular relies on the legitimacy of, and compliance with, the purported standing orders for the periods 2006-2007 and 2007-2008. The Tribunal repeats its earlier findings, and concludes that Mrs Vatsyayann was not qualified and therefore not authorised to give these injections.

147. Dr Lack explained that one of the risks associated with the administration of Depo- provera injections is the risk of an allergic reaction; and that an allergic reaction can be fatal. Dr St George stated that he considered the permitting of an unqualified/unauthorised person to give such an injection as amounting to a serious departure from acceptable practice. He stated that such injections should be given deeply into bulky muscle, such as laterally into the gluteus. As well as dangers inherent in an injection that pierces skin, he said there have been cases in New Zealand of damage to the sciatic nerve from improper placement of a Depo- provera injection.

149. This relates to one patient, Ms EL. Her notes record that an IUD was removed on 1

November 2007. Ms EL said that it was definitely Dr Vatsyayann’s wife who undertook this procedure, and that it was “really rough”. She described the person who undertook the procedure as being Indian, and said that it was the doctor’s wife.163

She did not see Dr Vatsyayann before the procedure.164 The Tribunal accepts that

150. Ms Colton said that if someone wanted to have an IUD fitted or removed, she would have booked them in with Mrs Vatsyayann, although she could not recall now a particular instance of having done so. The Tribunal is not able to make a finding that she witnessed this, since she is unable to recall it having occurred.

151. Mr TH stated that he could recall a specific instance where Mrs Vatsyayann removed an IUD during his period of employment (July to November 2006). He recalled the procedure took place in the main consultation room, and that Mrs Vatsyayann was the only person (other than the patient) present during the procedure.165 Since this cannot have been Ms EL (her IUD was removed on 1 November 2007), the Tribunal finds that Mr TH witnessed an example of Mrs Vatsyayann removing an IUD, during his period of employment.

152. Dr Lack stated that IUDs are not usually removed by anyone other than a GP.

Sometimes, however, a GP may have the assistance of a nurse. She explained that some nurses have a background in the family planning service, and within that context are trained how to removal coils. She stated this is advanced level training and usually takes around 18 months experience in family planning. Nurses who have had such training can remove coils in a general practice setting. She expressed the view that it would be a substantial departure from accepted practice for Dr Vatsyayann to permit a person without the appropriate qualifications to remove an IUD.

153. Dr St George explained that whilst removing an IUD is a relatively simple procedure, there are dangers associated with it, ranging from breaking threads by pulling too forcefully (and thus requiring later instrumental removal), to causing miscarriage in undetected pregnancy. Due to the serious possible dangers, he would regard the removal of an IUD as a procedure that should only be performed by a specially trained registered nurse or registered medical practitioner.

154. The Tribunal accepts the expert evidence of Dr Lack and Dr St George. It concludes that for Dr Vatsyayann to have permitted Mrs Vatsyayann to undertake such procedures was a serious departure from acceptable standards. The subparticular is established.

Conduct herself in other ways so as to represent that she was a qualified nurse, including allowing other staff to represent the same:

155. The Tribunal heard evidence from many patient witnesses who considered that, because of the nature of the work she was carrying out, Mrs Vatsyayann must have been a nurse; or alluded to the fact that she was regularly referred to as a nurse.166

156. Similar evidence was given by staff, to the effect that she was called a nurse.167

157. There was evidence from Ms Foot that there were attempts to resolve this. But none of the patients who gave evidence to the Tribunal were told that Mrs Vatsyayann was not a registered nurse, or (where relevant) a qualified smear taker; their informed consent to receiving treatment from an unqualified person was not obtained, and should have been.

159. Consequently, each of the five subparticulars of Particular 3 are established.

166 Andrews para 10, JN para 4, EM para 3, AS paras 2 & 3, EL para 4, YA para 6.

161. As to whether the particular would, considered separately, warrant discipline, the

161.1. There were a range of procedures where Mrs Vatsyayann was not qualified or authorised to perform.

161.2. Especially serious were the intimate procedures, such as the taking of smears.

All medical practitioners should be well aware of the issues relating to the proper administration of smears, and the fact that the relevant regulatory requirements are easily accessible on the Ministry of Health website. The Tribunal was very concerned that there was no evidence at all that Dr Vatsyayann had required Mrs Vatsyayann to undertake the necessary training for lay smear taking, until it was too late; and when it was too late, he did not instruct her to cease taking smears.

161.3. The various procedures were performed on multiple patients and over a significant period of time.

161.4. The letter from the Ministry of Health in July 2008 should have alerted Dr Vatsyayann to the need to deal with compliance issues forthwith; as stated, he should have ensured that Mrs Vatsyayann did not continue these procedures until the issue had been addressed. He did not.

“Value of Cx smear & cost of ThinPrep procedure and actual procedure & possible discomfort during it xpland, verbal consent taken, chaperoned by Sue, high vaginal swab & Cx smear taken using cervibrush, no complications,

164. In earlier findings, the Tribunal has concluded that Mrs Vatsyayann undertook, alone, cervical smears in respect of Ms EM, Ms AS, and Ms EL. For each of them, the clinical notes included the above entry. The notes were false, because Mrs Vatsyayann was not a chaperone; she was the smear taker.

165. In the case of Ms JN and Ms AD, although the Tribunal has given Dr Vatsyayann the benefit of the doubt as to the establishing of the subparticular because there is evidence he entered the room during the procedure, it is clear that Mrs Vatsyayann was more than a mere chaperone. She was actively involved in the procedure. Again, the clinical record is inaccurate.

166. The fact that an identical entry was used in each case which was routinely inaccurate is of serious concern.

167. It has been emphasised in many previous decisions of the Tribunal that proper record keeping, especially of clinical matters, is essential. These standards are set out clearly in Coles Medical Practice in New Zealand168 and in Good Medical Practice (published

168. Dr St George stated that the breach in this case would amount to a clear and significant departure from the standard of accurate record keeping set out in the above documents; and Dr Lack stated that the note was misleading.

170. This conduct amounts to negligence, and brings discredit to the profession.

171. The threshold for discipline is established, if this particular is consider on its own, because of these multiple entries which were misleading and deceptive.

173. Since each of the four particulars, considered individually, constitutes professional misconduct, it must follow that considered cumulatively they amount to professional misconduct. There is a very serious pattern of multiple breaches, which can only be described as grave. Accordingly, the charge is made out.

174. The Tribunal must now receive submissions as to penalty, and directions in that regard are set out below.

175. As referred to earlier, permanent non-publication orders have been made in respect of practically all of the patients who gave evidence, or whose circumstances needed to be considered. This also applied to some staff members, but an objection was raised in respect of three particular staff members. These issues are referred to in the Tribunal’s decision of 10 November 2010.170 In that decision an interim order was made until further order of the Tribunal, so that further evidence could be received by the Tribunal at the substantive hearing from each of the three persons involved, and from Dr Vatsyayann (if he chose to give evidence).

176. Counsel for the PCC confirmed that an undertaking from Dr Vatsyayann would not satisfactory resolve this issue, since agreement could not be reached as to its form.

177. When each of Mr TH, Ms EN and Mr TA gave their evidence, the Tribunal had an

summary, these related to a fear that Dr Vatsyayann would disclose the name of those persons, saying derogatory or hurtful things; and/or that there was a risk of being ostracised by members of the community; or that there could be an adverse effect on reputation.

178. Ms Foot submitted that suppression orders should not be made because their evidence was “hearsay”; and for some there had been no adverse comments made in relation to those persons since their employment ended.171

179. The Tribunal does not consider the evidence given by the former staff members to be

“hearsay”. The concerns they raised reflect their own genuinely held beliefs as to their concerns, and their worries that this might happen. The Tribunal is satisfied that their beliefs are genuine.

180. Having regard to the principles discussed in the interim decision, the Tribunal is satisfied that the factors raised by the three staff members outweigh the public interest factors that would normally require disclosure of name; and the Tribunal therefore considers it is desirable to make the orders sought. Permanent orders of non- publication of name and identifying details are therefore made in respect of Mr TH, Ms EN and Mr TA.

182. The Tribunal will now receive submissions as to penalty under the following timetable:

182.1. The PCC is to file its submissions, and any supporting evidence, within 14

182.2. Dr Vatsyayann is to file submissions, and any evidence, in relation to penalty

183. Then, the Tribunal will need to consider those submissions. It can do so either on the papers, or at a reconvened hearing. The Tribunal’s tentative view, subject to hearing from the parties, is that it should deal with the penalty submissions at a resumed hearing. If, however, there is a strong preference on the part of both parties for the matter to be dealt with on the papers, it will consider that possibility further.

1	AE
2	RE
3	HE
4	BE
5	KE
6	ME
7	RL
8	AK
9	CY
10	NN
11	YN
12	HN (deceased at time of enrolment)
13	RR
14	YR (deceased at time of enrolment)
15	TN
16	COLTON, Louise
17	MG
18	DL
19	AN
20	NS
21	AR
22	NM
23	LM

24	YT
25	IE
26	EE
27	(Patient withdrawn at hearing)
28	NI (deceased at time of enrolment)
29	SK
30	OE
31	EY
32	RY
33	LE
34	CN (known as CA)
35	LK
36	O'REILLY, Karren
37	AY
38	YL
39	DD
40	TH
41	HH
42	NH
43	ER
44	ES (deceased at time of enrolment)
45	NS
46	AH

1	EM
2	AS
3	EN
4	One or more patients of unknown identity, as detailed in the evidence to be given by TH, EN, Louise Colton and TA.

Patients provided treatment and/or clinical procedures by Mrs Subash Vatsyayann

*Cervical Smear*
1	(Patient removed at hearing)
2	JN
3	EM
4	AD
5	AS
6	EL
7	Patient removed at hearing
*Children's Vaccinations*
8	YW
9	IL
10	IN
11	EM
12	AD
13	(Patient removed at hearing)
14	YA
15	IA
*Depo-Provera Injections*
16	YW
17	JN
*Removal of Intrauterine Device*
18	EL
One or more patients of unknown identity as detailed in the evidence to be given by TH, EN, Louise Colton and TA

New Zealand Health Practitioners Disciplinary Tribunal

Vatsyayann [2011] NZHPDT 355 (17 February 2011)