Medical Practitioner, Dr E New Zealand Men's Clinic - Health and ...

Health and Disability Commissioner
Similar themes are present in this case. A cursory assessment, with little discussion of
relevant medical and psychosocial factors, led to the patients feeling inadequately
assessed and treated.
I am also concerned by the practice of giving a patient leaflets to read and consent
forms to sign prior to their first consultation with a doctor. When men who are firsttime
patients are seeking treatment for a sensitive problem such as erectile
dysfunction, particular care is needed to ensure that the men understand their
treatment options and do not feel pressured to purchase a recommended treatment.
Information about costs is especially important when an expensive course of treatment
is recommended.
What happened to the men in these cases verges on exploitation. They certainly did
not give informed consent to treatment — and could not do so simply by completing a
questionnaire and signing a consent form before their first consultation.
Opinion: Breach — The New Zealand Men’s Clinic
Under section 72(2) of the Act, an employing authority may be vicariously liable for
an employee’s failure to comply with the Code. Section 72(1) of the Act states that the
term “employing authority” means a health care provider or a disability services
provider. Section 3(k) of the Act states that a health care provider includes any person
who provides health services to the public. The New Zealand Men’s Clinic (the
Clinic) provides health services to the public, and thus falls within the definition of
health care provider and qualifies as an employing authority.
To establish vicarious liability, it must be established that Dr E was an employee,
agent or member of the Clinic.
Dr E is both a director and 100% shareholder of the Clinic, and he represents himself
as having a close affiliation with the Clinic. There are circumstances in which the
actions of a person can lead to a relationship of agency being implied. As noted by the
Court of Appeal: 7
“The legal principles relating to ostensible or apparent agency are well settled. A
person who by words or conduct has allowed another to appear to a third party to
be his or her agent cannot afterwards repudiate that agency.”
In my view, Dr E is (at the very least) an agent of the Clinic and therefore section 72
applies.
7 Arthur Watson Savage v Kathleen Taylor (unreported, CA 103/95, 19 March 1996, Richardson P).
18 December 2008 20
Names have been removed (except the NZ Men’s Clinic) to protect privacy. Identifying letters are
assigned in alphabetical order and bear no relationship to the person’s actual name.