A Must Read for All Practitioners
One Word Could Cost you a Fortune
By now, most NZ Charter of Health Practitioners members will have heard that two of our members have been convicted and fined to the value of $23,400.
The starting point for this prosecution was the use of one word on their website and a newspaper advertisement.
They informed the public that they had a “remedy” for sale. What was meant to be an innocent announcement turned out to be the beginning of a nightmare that was sole destroying and very expensive.
Once the word “remedy” was red flagged, every other word and statement on the site was scrutinised and allegations were made in regard to the rest of the website and the newspaper advertisement.
We as practitioners tend to use the word “remedy” to differentiate between the word “medicine” and a natural healthcare product. Practitioners know that the word “Cure” is forbidden. What practitioners are not aware of, is that there are at the very least ninety words that can be presumed in law to mean “cure”.
Accordingly the word “remedy” was taken by the investigator and the Commerce Commission to mean “cure” and therefore in law a claim had been made to cure.
There were in fact forty-three charges placed against these practitioners, each charge built on the previous charge. Each charge represented a maximum penalty of $60,000.
According to the Commerce Commission report on the case released to the court the Judge noted that the defendants provided no evidence to the Court about the efficacy of their remedies. This is not exactly correct or at the very least debatable as the defendants went to Court fully prepared to answer each and every charge. However, the structure of the Court procedure and the Judges adamant direction changed that approach.
A costly learning curve
When I went to school, in the Civics class we learnt that we lived in a democracy and that our legal system was such that one was innocent until proven guilty. This is not true today, that is if it ever was true. We are also now aware that under the law of Scotland, France, Dictatorships, Police States and Banana Republics and in New Zealand - every one is guilty until proven innocent.
In a Gilbert and Sullivan satirical scenario application of guilty until proven innocent could result in a number of different courts in different locations charging a number of different individuals for the same crime and none or a number of them able to prove their innocence due to legal chicanery, all could be judged guilty as charged.
In this case the defendants had to prove their innocence for each and every charge, statement made on their website, and newspaper advertisement; as well as the investigators taped recoding of their interview (there was no caution that they may have been guilty of breaking the law) as well as covertly taped telephone discussion with their receptionist with the falsehood as a fictitiously named individual ordered a remedy.
The Judge ruled that these taped conversations collected covertly by a government agency investigator were legal and admissible in exactly the same way as conversations by an undercover policeman and drug dealers is legal.
This case was scheduled for one week so that all the evidence could be heard. But early in the case after hearing the evidence presented by the Commerce Commission’s Prosecutor the Judge informed the defendants to enter into discussions with the prosecution and to plead guilty to a lesser number of charges or face fines of hundreds of thousands of dollars. I totaled the number of charges and the fines would have been over a quarter of a million dollars as well as their own legal costs.
Overwhelmed by the Judges manner which had arisen before any of their defence had been heard and tested by cross examination, and before the brief of expert witnesses for the Court and the defendants had been placed before or viewed by the Court or the Judge and the impossibility of defeating the meaning of the word “remedy” accepted by the Court, the defendants capitulated and pleaded guilty to the lesser charges.
What has been learnt from this case?
The ‘Charter’ has always informed practitioners to contact the ‘Charter’ immediately if there is any hint of a possible complaint whether from an individual or a government agency. (this procedure was not followed in this case, which resulted in the loss of the ‘Charter” insurance cover. So importantly contact the ‘Charter’ immediately and DO NOT TALK TO ANY INVESTIGATOR no matter how caring and sincere they may appear.
What else has been learnt?
All of our members must review all their advertising material, website, newspaper, newsletter, pamphlets and possibly business cards to ensure that no claim is inadvertently made. The plea of innocent is not acceptable to Government agencies and the Court.
What else?
There is no freedom of speech if you are a practitioner or a member of the staff of a practitioner. A misplaced or misconstrued word could form the basis of an investigation that not only could cost you thousands of dollars but also your belief in common justice.
Do Not Let This Type of Situation Happen To You
Practitioner be-ware
Practitioner be-aware
Non assumpsit all rights reserved
© Kenneth :V-McIver. Auckland New Zealand January 19 2009 |
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