Edwards v A Professional Conduct Committee
[2022] NZHC 3189
•1 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-90
[2022] NZHC 3189
BETWEEN STEFAN RANDAL EDWARDS
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 25, 26 and 27 October 2022 Appearances:
M McClelland KC and H C Stuart for Appellant D La Hood and A Oliver for Respondent
Judgment:
1 December 2022
JUDGMENT OF LANG J
[on appeal against decisions of the Health Practitioners Tribunal]
This judgment was delivered by me on 1 December 2022 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Lyon O’Neill Law, Tauranga / M McClelland KC, Wellington H C Stuart, Wellington
Luke Cunningham Clere/ D La Hood / A F Oliver, Wellington
EDWARDS v A PROFESSIONALCONDUCT COMMITTEE [2022] NZHC 3189 [1 December 2022]
TABLE OF CONTENTS
Relevant principles [8]
Approach on appeal [15]
The credibility of witnesses [20]
Ms Clarke [23]
Mr Tillotson [27]
Mr Edwards [30]
Charge One [42]
Complainant A: (particulars 1-12) [43]
Admission of hearsay statement [49]
Particular 1: performing surgery on A when that was inappropriate
having regard to her circumstances [66]
Particular 2: failing to obtain A’s informed consent to the surgery [81] Particular 5: causing harm to A through over-correcting the bunion [89] Particulars 6, 8 and 9: inadequate post-operative care [96]
Particular 7: the osteotomy and post-surgical care caused harm to A
because the second metatarsal bone failed to heal [107]
Particulars 11 and 12: failing to keep adequate contemporaneousclinical records and modifying clinical records [113]
Complainant B: (particulars 13-23) [118]
Particular 13: failure to obtain informed consent [123]Particular 14: offering B a financial inducement to undergo surgery
by reducing the cost [130]
Particular 15: failure to offer a refund [136]
Particular 16: failure to adequately plan for the length of time thesurgery would require [140]
Particular 17: causing harm to B by failing to resolve her presenting
condition and causing her ongoing pain [143]
Particular 18: failing to acknowledge and appropriately manage the
adverse outcomes of surgery [148]Particular 19: failing to adequately communicate with B’s general practitioner or to refer her to other medical practitioners to facilitate
her recovery [154]
Particular 21: speaking to B in an unprofessional manner [146]
Particular 22: failing to maintain adequate contemporaneousclinical records regarding B’s treatment [157]
Complainant C: (particulars 24 to 32) [158]
Particulars 24 and 25: undertaking surgery when that was an
inappropriate form of treatment [162]
Undertaking surgery to address a secondary concern [163]
C’s history of anxiety [167]Particular 26: failing to obtain informed consent [172] Particular 27: failing to provide advice about post-operative care [180] Particular 28: causing harm to C [185]
Particular 29: failure to manage adverse outcomes [190]
Particular 30: failure to communicate with C’s general practitioner [194]
Particular 31: failure to maintain adequate contemporaneous clinicalrecords [197]
Particular 32: subsequently modifying clinical records [198]
Complainant D: (particulars 33-42) [200]
Particular 34: failing to obtain D’s informed consent [206] Particular 35: inducing D to undergo surgery by reducing the cost [209] Particular 36: inappropriate use of endoscopic technique [211] Particular 37: causing harm to D through inappropriate surgical technique [212] Particular 38: failing to manage adverse outcomes of surgery [226] Particular 39: recommending that D undergo further surgery [230]
Particular 40: failing to adequately communicate with D’s general
practitioner to facilitate her recovery [233]
Particular 41: failing to maintain adequate contemporaneous clinicalrecords [236]
Particular 42: modifying clinical notes [240]
Complainant E: (particulars 43-47) [244]
Particular 44: failing to obtain E’s informed consent [248]
Particular 46: failing to maintain adequate contemporaneous clinicalrecords [253]
Particular 47: modifying the contemporaneous clinical records [255]
Complainant F: (particulars 48-59) [258]
Particular 48: failing to make an informed diagnosis [262]
Particular 49: failing to obtain F’s informed consent [269]
Particular 50: failing to provide opportunity to obtain a second opinion [273]
Particular 51: performing medial plantar aponeurosis release surgeryon F [274]
Particular 52: performing endoscopic surgery on F without her
informed consent and contrary to her decision to have open surgery [275]
Particular 53: using the endoscopic technique on 5 May 2016 despite
the difficulties encountered on 27 April 2016 [276]
Particular 54: causing harm to F by severing the medial plantar
nerve during the second procedure [281]
Particular 55: failing to acknowledge and adequately manage the
adverse outcomes of surgery [288]
Particular 56: failing to communicate with F’s general practitioneror refer her to other medical practitioners [293] Particular 58: failing to keep adequate contemporaneous clinical records [297] Particular 59: modifying clinical notes [302]
Particulars 1 and 2: conducting unsupervised surgeries [306]
Particulars 3 and 4: continuing to hold himself out as a podiatric
surgeon and offer podiatric surgery services while suspended [310]
Particular 5: including three testimonials on his website [318]
Analysis: Charge One [331]
Summary of particulars that have not been established [332] Assessment of gravity of particulars that have been established [338] Undertaking endoscopic surgery without F’s consent [339] Causing harm to patients by inappropriate or substandard surgery [340] Failure to advise of potential risks and complications of surgery [345] Failure to maintain adequate clinical notes and modifying clinical notes [348]
Failure to manage adverse outcomes of surgery and provide adequate
post-operative care [350]
Failure to adequately communicate with patient’s general practitioner [355[
Failure to make an informed diagnosis [356]
Overall assessment
Charge One [357]
Charge Two [360]
Penalty
The Tribunal’s decision [364]
The appeal [370]
Decision [372]
[1] Mr Edwards is a registered podiatric surgeon. Between 2014 and 2017 complaints were made by six of his patients to the Health and Disability Commissioner (the Commissioner). These related to surgical procedures Mr Edwards had performed on the complainants.
[2] The Commissioner began to investigate the first complaint that it received in 2014. However, after receiving five further complaints in 2016 and 2017, it referred all six complaints to the Podiatrist’s Board of New Zealand (the Board). The Commissioner made the referral under s 34 of the Health and Disability Commissioner Act 1994, which permits the Commissioner to refer a complaint about a health practitioner to an appropriate authority if it appears from the complaint that the competence and fitness to practise of that practitioner may be in doubt. The Board then appointed a Professional Conduct Committee (the PCC) to investigate the complaints.
[3] In July 2019, the PCC laid two charges against Mr Edwards alleging professional misconduct. The first charge included 59 particulars, or discrete allegations, relating to Mr Edwards’ treatment of the six complainants. These were the subject of a nine-day hearing before the Health Practitioners Disciplinary Tribunal (the Tribunal) in March 2021. Closing submissions on the charge were then delivered over two days on 31 May and 1 June 2021.
[4] The second charge was the subject of a hearing on 28 and 29 July 2021. At the end of this hearing the Tribunal advised the parties of the result on both charges, including penalty. The Tribunal then delivered the reasons for its decisions on 15 December 2021.1
[5] The Tribunal found 51 of the 59 particulars on the first charge had been established. The second charge, which contained five particulars, related to alleged breaches by Mr Edwards of conditions imposed on his practising certificate pending determination of the first charge. Mr Edwards accepted that the Tribunal should find the first two particulars established. The Tribunal also found the remaining three
1 A Professional Conduct Committee v Edwards HPDT 1211/Pod20/484P and Pod 21/507P, 15 December 2021.
particulars of the second charge had been made out to the required standard. This led the Tribunal to conclude that Mr Edwards was guilty of negligence and malpractice and that his conduct has brought, or was likely to bring, discredit to the podiatry profession.2
[6] The Tribunal cancelled Mr Edwards’ registration as a podiatric surgeon and podiatrist.3 In addition, it censured Mr Edwards4 and ordered him to pay 40 per cent of the total costs of the proceeding.5 This amounted to the sum of $195,000.
[7]Mr Edwards appeals against each of the Tribunal’s decisions.
Relevant principles
[8] Section 100(1) of the Health Practitioners Competence Assurance Act 2003 (the Health Practitioners Competence Act) relevantly provides as follows:
100 Grounds on which health practitioner may be disciplined
(1)The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a)the practitioner has been 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; or
(b)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
…
[9] In the present case the PCC contended that Mr Edwards was liable in relation to both charges under s 100(1)(a) and (b).
2 Above n 1, at [443].
3 At [570].
4 At [571].
5 At [589].
[10] The primary purpose of disciplinary procedures in this context is the protection of the public through maintenance of appropriate professional standards.6 The tests for malpractice, negligence, and bringing the profession into disrepute were considered in Collie v Nursing Council of New Zealand, in which Gendall J observed:7
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 considered acceptable and not mere inadvertent error, oversight, or for that matter, carelessness.
[11]As to the test for bringing the profession into disrepute, Gendall J noted:8
To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard with the question to be asked by the Council being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the reputation and good-standing of the nursing profession was lowered by the behaviour of the nurse concerned.
[12] In Staite v Psychologists Board, Young J cautioned against using a profession’s code of ethics or practice standards as a template and said that conduct will not constitute professional misconduct merely because it does not comply with a profession’s code.9 Rather, codes and standards should be regarded as a guide to be taken into account by the Tribunal when exercising its independent judgment as to whether, in the circumstances of a particular case, there has been professional misconduct. This approach was affirmed by Gendall J in XY v A Professional Conduct Committee of the Medical Council of New Zealand.10
[13] Even if a breach of professional standards amounting to malpractice or negligence is established, or there is a finding that conduct has brought or is likely to bring the profession into disrepute, more is required before a finding of professional misconduct may be established. This is referred to as the “disciplinary threshold.” As
6 McKenzie v Medical Practitioners Disciplinary Tribunal [2004] NZAR 47 (CA) at [71].
7 Collie Nursing Council of New Zealand [2001] NZAR 74 (HC) at [21].
8 At [28].
9 Staite v Psychologists Board (1998) 18 FRNZ 18 (HC) at 34.
10 XY v A Professional Conduct Committee of the Medical Council of New Zealand [2022] NZHC 1498 at [129].
Gendall J observed in Cole v PCC, a finding of professional misconduct is a significant matter and should be reserved for the most serious misconduct.11
[14] In Johns v Director of Proceedings, Moore J held that the threshold question is one which ought to be considered with care having regard to the purposes of the Health Practitioners Competence Act, principally that of protecting the public, and the inevitable adverse consequences borne by the practitioner in the event of a finding of professional misconduct.12
Approach on appeal
[15] Mr Edwards has an appeal as of right against all aspects of the Tribunal’s decisions.13 Appeals in the present context are by way of rehearing.14
[16] In its appellate jurisdiction this Court may confirm, reverse, or modify the decision or order appealed against. It may also make any decision or order that the Tribunal could have made at first instance.15
[17] Given that the appeal is by way of rehearing, the usual appellate principles apply. The appellate court has the responsibility of arriving at its own assessment of the merits of the case.16 However, the onus is on Mr Edwards to demonstrate why the Tribunal’s decisions are wrong.17
[18] An appellate court may, however, recognise that the tribunal below had a particular advantage such as an opportunity to assess the credibility of witnesses, where such assessment is important.18 I emphasise this because in the present case the Tribunal had the benefit of seeing and hearing the critical witnesses, and over a lengthy period. It therefore enjoyed a distinct advantage in reaching decisions based on the credibility and reliability of witnesses.
11 Cole v Professional Conduct Committee of the Nursing Council of New Zealand [2017] NZHC 1178 at [45].
12 Johns v Director of Proceedings [2017] NZHC 2843.
13 Health Practitioners Competence Assurance Act 2003, s 106(2)(a).
14 Section 109(2).
15 Section 109(3).
16 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
17 Above n 16, at [4].
18 Austin Nichols & Co Inc v Stichting Lodestar, above n 16, at [5].
[19] In the present case it is necessary for me to begin by determining whether, and to what extent, the Tribunal was entitled to find the particulars in each charge had been established. It is then necessary for me to determine whether these establish that Mr Edwards was guilty of professional misconduct that reflected on his fitness to practise to the extent that disciplinary action was justified. If so, I must determine whether the Tribunal was justified in censuring him and cancelling his registration as a podiatric surgeon. Finally, I must determine whether the order requiring Mr Edwards to pay 40 per cent of the costs incurred by the PCC and the Tribunal was justified.
The credibility of witnesses
[20] Before considering the individual particulars, I propose to deal with an issue that was central to many of the Tribunal’s conclusions. This relates to the credibility of the witnesses who gave evidence before it. The Tribunal dealt with this issue in a separate section that appears early in its decision.
[21] In short, the Tribunal largely accepted the evidence given by the complainants. Where this was in conflict with the evidence given by Mr Edwards, the Tribunal preferred the evidence of the complainants to that given by Mr Edwards.
[22] There are only three podiatric surgeons in New Zealand who are qualified to perform advanced forefoot and mid-foot surgery: Ms Stacey Clarke, Mr Trevor Tillotson, and Mr Edwards. Each gave evidence before the Tribunal – Ms Clarke for the PCC, Mr Edwards and Mr Tillotson for the defence.
Ms Clarke
[23] Ms Clarke effectively critiqued the treatment Mr Edwards provided to each of the six complainants. This extended to the clinical notes that he maintained in relation to each.
[24] Ms Clarke is a podiatrist and podiatric surgeon who practises in Auckland. She holds a doctorate in podiatric medicine from the Ohio College of Podiatric Medicine at Kent State University, which she obtained in 1991. She has been certified with the American Board of Foot and Ankle Surgery, the governing regulatory body in the
United States, since 1996. She is also a member of the American College of Foot and Ankle Surgeons.
[25] According to Ms Clarke, podiatric training in the United States is entirely different to that in New Zealand. She said podiatrists undertake at least 11 years of training, comprising four years of a Bachelor of Science (now a prerequisite), four years at Podiatry Medical School and a three-year surgical hospital residency. She explained that there is crossover with general medical studies in that podiatry training in the United States includes rotations in neurology, vascular surgery, anaesthesiology, general surgery, hand orthopaedics, and biomechanics. In addition, US podiatrists have full prescription authority, including narcotics.
[26] Ms Clarke has been registered as a podiatrist with the New Zealand Board of Podiatrists since November 2018. She moved to New Zealand in early 2019. In December 2019, the scope of Ms Clarke’s registration was extended to podiatric surgery, subject to supervision conditions pending her full registration.19 Ms Clarke has performed endoscopic procedures and operations across the entire foot.
Mr Tillotson
[27] Mr Tillotson is retired podiatrist and podiatric surgeon. He gained a Diploma of Podiatric Medicine and Certification in Local Analgesia from the Northern College of Podiatry (now the University of Stanford) in 1976.
[28] Mr Tillotson immigrated to New Zealand in 1980. He is a founding member of the New Zealand College of Podiatric Surgery (“NZCPS”), established in 1986, and played a particular role in the development of the podiatric surgery programme. He acted as Chair of the NZCPS until recently, though the College has not been active in the sense of providing formal courses or continuing education since 2001. Mr Tillotson has also served as Chairperson of the Podiatrists Board and as President of Podiatry New Zealand.
19 This is because the Board considered Ms Clarke had performed a relatively small number of procedures in the two years preceding her registration in New Zealand. Ms Clarke explains that she took a break from professional practice in June 2018 due to a bereavement.
[29] Mr Tillotson practised podiatric surgery until 2012 and podiatry until March 2021. Mr Tillotson has not performed endoscopic procedures and his work has generally focused on the forefoot rather than the rear foot.
Mr Edwards
[30] Mr Edwards is a registered podiatrist and radiographic imager. He holds a Bachelor of Science (Honours) majoring in Podiatric Medicine from the University of Brighton, which he obtained in 1993. He then practised in a private podiatry clinic in the United Kingdom for two years, before moving to New Zealand in 1995. That same year, Mr Edwards passed the New Zealand registration examination for podiatry and set up his own clinic in Mount Maunganui.
[31] In 1999, Mr Edwards obtained a Diploma of Podiatric Surgery from the NZCPS. This was a two-year programme that was run in collaboration with the Ohio College of Podiatric Medicine. It therefore primarily involved distance learning by modules, with the exception of a two-week practical block on-site.
[32] In 2000, Mr Edwards undertook a further three years of specialist training in podiatric surgery through the NZCPS. This was an extension of the modular syllabus and involved approximately three hours per week of academic correspondence work, along with in-person supervised surgical training from time to time.
[33] In 2003, Mr Edwards moved his clinic from Mt Manganui to Tauranga, where he practised podiatric surgery until September 2019. In 2011, after Mr Edwards had performed over 2000 procedures, he was asked to become a fellow of the NZCPS. Mr Edwards has been heavily involved with the institution over the years, at one point holding the position of President. He remains a trustee alongside Mr Tillotson, who is known to him both as a colleague and a friend.
[34] In 2013, Mr Edwards undertook radiological training through the European Society of Radiology (ESR). He also set up a further podiatry clinic in Auckland.
[35] In 2015, Mr Edwards attended a two-day observational course in America on foot and ankle arthroscopy. In addition, he travelled to Perth for courses, there being limited opportunities for continuing education in New Zealand.
[36] In 2018, Mr Edwards completed the post graduate qualification ‘Advanced Pharmacology for Podiatrists’ through the University of South Australia.
[37] Counsel for Mr Edwards challenged Ms Clarke’s partiality before the Tribunal because of the manner in which she had responded to posts on the Podiatry New Zealand Facebook page. In particular, Ms Clarke had commented on a post concerning a Newshub television programme that had been critical of Mr Edwards’ treatment of complainant E. Ms Clarke posted a comment that said “one bad apple should not define the entire group”. The Tribunal found that this did not detract from Ms Clarke’s suitability as an independent expert witness. The Tribunal considered she had diligently fulfilled the role of providing independent and helpful expert opinion on the podiatric procedures undertaken by Mr Edwards. By and large the Tribunal accepted Ms Clarke’s evidence where it conflicted with that given by Mr Edwards and Mr Tillotson. The Tribunal also considered Mr Tillotson’s objectivity was coloured by his long association with Mr Edwards.
[38] On appeal Mr McClelland renewed the challenge to Ms Clarke’s credibility. He submitted that she had failed to make reasonable concessions regarding the range of acceptable practices and did not accept she may have been influenced by hindsight bias. Mr McClelland also submitted that Ms Clarke had based her opinion solely on Mr Edwards’ clinical notes and the statements made by the complainants, while disregarding the explanations given by Mr Edwards in response to these. Mr McClelland submitted that, viewed as a whole, Ms Clarke’s evidence displayed a disturbing lack of balance. She had been “hypercritical” of Mr Edwards and refused to accept that different practitioners might reasonably take different approaches.
[39] Mr McClelland was also critical of the Tribunal for failing to give Mr Tillotson’s evidence greater weight. Unlike Ms Clarke, he had given evidence regarding the range of acceptable practices in circumstances where many of the issues raised in the charges turned on questions of clinical judgment. He also made
reasonable concessions, even where these were adverse to Mr Edwards’ interests. Mr McClelland submitted that the Tribunal failed to give Mr Tillotson credit for these factors and failed to mention his evidence on contested issues.
[40] Ms Clarke provided a brief of evidence to the Tribunal that was 115 pages in length and gave evidence before the Tribunal over several days. The transcript of her evidence occupies more than 230 typed pages. Mr Edwards and Mr Tillotson also produced lengthy briefs of evidence and gave evidence over extended periods. This means the Tribunal was in a much better position than the Court to assess the weight to be given to the evidence of all three witnesses.
[41] In preparing this judgment it has been necessary for me to read not only the briefs of evidence but also the transcript of evidence in relation to many of the particulars the Tribunal found had been established. Having undertaken that exercise I am satisfied the Tribunal was entitled to place significant weight on Ms Clarke’s evidence when it came to the treatment Mr Edwards provided to the complainants. I accept that she was firm in her evidence and on some points could be described as inflexible. She could also be described as dismissive of the level and nature of the training undertaken by Mr Edwards. However, I consider Ms Clarke’s training and experience in the field of podiatric surgery to be vastly superior to that of both Mr Tillotson and Mr Edwards. Having read her evidence I am satisfied the Tribunal was entitled to prefer it to that given by Mr Edwards and Mr Tillotson on issues relating to the treatment provided to the complainants. I consider the issue of the Facebook post to be a red herring deserving of little or no weight.
Charge One
[42] As I have already observed, the first charge relied upon 59 particulars. The Tribunal found that 51 of these had been established. Each of these comprised a discrete allegation relating to Mr Edwards’ treatment of the six complainants. I shall refer to the complainants as A, B, C, D, E and F respectively.
Complainant A: (particulars 1-12)
[43] Complainant A consulted Mr Edwards on 8 April 2013 because she had severe pain in her left foot. Mr Edwards diagnosed a bunion deformity, a condition that causes the big toe to point inwards. He also noted that she presented with an overlying second toe (sometimes referred to as “hammertoe”) that meant the second toe was pointing downwards rather than sitting flat. In addition, she had an overly long second metatarsal (second long bone in the foot). Mr Edwards recommended correction of the bunion and shortening of the second metatarsal.
[44] On 16 April 2013, Mr Edwards performed surgery on the bunion and second metatarsal. He performed a procedure known as an Austin bunionectomy to treat the bunion and a procedure known as an oblique osteotomy to shorten the second metatarsal.
[45] A was 76 years of age at the time of surgery. When A consulted Mr Edwards she was planning to visit her son in China in two months’ time. Mr Edwards told A that she would be healed and mobile within six weeks after surgery. However, at a post-surgery consultation on 22 May 2013 Mr Edwards told A that her foot would not be healed in time for her to travel overseas. He told her she should not undertake air travel for a period of six months.
[46] Some months later A developed a deformity known as hallux varus. This occurs when the big toe adjacent to the bunion turns outwards rather than inwards as was the case prior to surgery. The second metatarsal had also not healed properly due to the non-union of the bones within the foot. This meant A was left with a less functional foot than was the case prior to surgery.
[47] At a final appointment on 17 September 2013 Mr Edwards told A that he could offer little further assistance to address her swollen foot and that it would take time to heal. Shortly thereafter A dispensed with Mr Edwards’ services and consulted Mr Aaron Cook, an orthopaedic surgeon. In May 2014 he undertook reparative surgery to address the non-union of the bones in the second metatarsal. He did this by fixing plates and screws to the bone to ensure they were stable. This resulted in the
bone healing and A ceased to be in pain. Mr Cook was not able to repair the hallux varus deformity to the big toe but he said that A was able to live with this.
[48] The Tribunal held that particulars 1, 2, 5, 6, 7, 8, 9, 11 and 12 had been established in relation to A. These may be summarised as follows:
(a)The procedures Mr Edwards performed were inappropriate because of A’s age, risk of osteoporosis, osteopenia (a condition that begins when a person loses bone mass through the aging process), the fact that the surgery was likely to impinge on A’s impending overseas travel and the effect of the surgery on A’s active lifestyle.
(b)Failure to obtain A’s informed consent to the surgery occasioned by inadequate pre-operative discussion and provision of information.
(c)Causing harm to A by using a substandard surgical technique resulting in the hallux varus deformity.
(d)Causing harm to A because the second metatarsal bone failed to heal as a result of the poor choice of surgical technique.
(e)Failing to provide adequate post-operative care.
(f)Failing to maintain adequate contemporaneous clinical records and subsequently modifying his clinical notes.
Admission of hearsay statement
[49] Approximately three weeks before the first hearing the PCC applied to adduce A’s brief of evidence dated 30 September 2020 on the basis that she was unavailable to give evidence at the hearing because of her age as well as her mental and physical condition. By this stage A was 84 years of age.
[50] In support of the application the PCC relied on a letter provided by A’s medical practitioner. This read as follows:
19 Jan 2021
Name: [A]
Address: [Redacted]
The above patient was seen and examined by me on 19 Jan 2021. [A] has been under my care for the last 22 years.
In my opinion she has been significantly impacted psychologically by the misadventure that resulted in the deformity of her left foot and the amputation of the second toe of her left foot.
She has been under duress seeking resolution to this misadventure for at least the last 5 years. I believe that having to give physical evidence would possibly result in further psychological injury that would no doubt have impact on her physical wellbeing as well.
I am led to believe that [A] has already submitted written evidence regarding the situation and she would hope that this would be sufficient.
Yours sincerely
Dr Dean Barklie
BSc MBChB FRNZCGP PGDipSM
[51] In addition, the PCC relied on the following information contained in an email A’s daughter had sent to the PCC on 2 October 2020:
Hi,
Yup, makes sense. [A’s] had a heart attack on 1 April 2020.
She is hard of hearing and even with her hearing aids she can mis-hear someone and then she gets stressed and finds it hard to answer questions under pressure. Talking about what happened to her, especially the pain around her foot, the pain he caused her when he pulled the K-wire out, the loss of her active life including riding her beloved horse Dally in the last few years of Dally’s life, all cause her emotional pain and unnecessary stress. Even driving past Mr Edwards’ rooms and seeing he is open for business is a painful reminder. Taking the stand would be painful for her and may induce another heart event. She gets angina now and can’t walk as far.
We could go to her GP and ask for a medical certificate saying he doesn’t recommend she take the stand as a witness. Would that be a help?
Thanks [Redacted]
[52] In a decision issued on 8 March 2021 the Tribunal held that the brief of evidence was admissible. Mr Edwards challenges this decision.
[53] It was common ground that the Tribunal was required to decide the application in accordance with the principles identified by the Court of Appeal in A Professional Conduct Committee of the Nursing Council of New Zealand v Health Practitioner’s Disciplinary Tribunal (commonly known as the “W” decision).20 In that case the Court of Appeal confirmed that, in considering an application to adduce hearsay evidence, the Tribunal must first consider whether the evidence would be admissible under s 18 of the Evidence Act 2006 (the Evidence Act).21
[54] If the evidence would not be admissible under s 18, the Tribunal may go on to consider whether it may nevertheless exercise its discretion to admit the evidence under cl 6(1) of Schedule 1 to the Health Practitioner’s Competence Act.22 This permits the Tribunal to receive any evidence that may assist it to deal effectively with the matter before it, whether or not such evidence would be admissible in a court of law. However, the Court also pointed out that the exercise of this discretion will be informed by the important natural justice right to challenge the truth of a complainant’s allegations through cross-examination.23
[55]Section 18(1) of the Evidence Act provides:
18 General admissibility of hearsay
(1)A hearsay statement is admissible in any proceeding if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)either—
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(Emphasis added
20 A Professional Conduct Committee of the Nursing Council of New Zealand v Health Practitioners Disciplinary Tribunal [2020] NZCA 435 [W].
21 At [38].
22 At [38].
23 At [39].
[56] Section 16(1) defines circumstances relating to the hearsay statement as including:
(a)the nature of the statement; and
(b)the contents of the statement; and
(c)the circumstances that relate to the making of the statement; and
(d)any circumstances that relate to the veracity of the person; and
(e)any circumstances that relate to the accuracy of the observation of the person
[57] Section 16(2) provides that a person is unavailable as a witness in a proceeding if the person:
(a)is dead; or
(b)is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c)is unfit to be a witness because of age or physical or mental condition; or
(d)cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence. (Emphasis added)
[58] In W, the Court of Appeal noted that the factors listed in s 16(1) reflect the need for a proper assessment of the seriousness of allegations contained in hearsay statements.24 The circumstances relating to the making of a statement emphasise the need for the statement to have been obtained fairly.25 Circumstances that raise issues of veracity go directly to credibility and reliability.26 The Court then observed:
[44] The circumstances in which a person may be found to be unavailable also reinforce the strength of the proposition that a person charged should generally have the ability to challenge their accuser and other witnesses by questioning them. The first and last of those — death and lack of compellability — are reasonably absolute and require little if any assessment. The other three, however, require careful assessment, and weighing of relevant factors, to determine whether a witness, here the complainant, can properly be said to be unavailable. In assessing availability and the impact of a witness
24 Above n 20, at [43].
25 At [43].
26 At [43].
giving evidence, the availability of the various alternative ways the Evidence Act provides for witnesses to give evidence will also be a relevant consideration.
[footnotes omitted]
[59] The Tribunal held that, while it does not appear that A was cognitively impaired, there was nevertheless “sufficiently compelling medical and other evidence before the Tribunal” to confirm that her physical and mental state of health rendered her unfit to be a witness for the hearing. The Tribunal therefore found that A was unavailable as a witness and that her written statement was admissible under s 18. In rejecting a submission for Mr Edwards that the Tribunal should explore alternative means by which A could give evidence, the Tribunal observed:27
[42] In view of the medical and psychological evidence, I do not consider this is an appropriate situation to explore alternative ways of supporting [A] to attend the hearing. She is elderly and has impaired hearing. I have accepted the evidence that her attendance in person would be very stressful and psychologically harmful to her. Attending the hearing via AVL is also likely to place undue pressure on [A] which, coupled with her hearing problem, will expose her to further unnecessary harm.
[60] The Tribunal then held that any prejudice to Mr Edwards arising from the fact that his counsel could not cross-examine A would be outweighed by the reliability of the statement that would be provided to the Tribunal subject to redactions suggested on Mr Edwards’ behalf.28 In the alternative, the Tribunal considered that it was an appropriate case to exercise its residual discretion under cl 6(1) of Schedule 1 to the Health Practitioner’s Competence Act to admit the evidence even if it was not admissible under s 18 of the Evidence Act.
[61] I consider the issue of whether A was unavailable in terms of s 18(1) to be finely balanced. She may well have found it physically difficult to give evidence because she is hard of hearing. In addition, it is likely that she would have found it traumatic to discuss the events that would have been the subject of her evidence. However, the Tribunal declined to explore alternative means by which A could give her evidence. By way of example, her brief of evidence could have been taken as read. The Tribunal could also have required Mr Edwards’ counsel to refine her topics for
27 A Professional Conduct Committee v Edwards, above n 1.
28 At [44].
cross-examination to ensure they were confined to matters on which it was important for the Tribunal to have A’s evidence or comments.
[62] Alternatively, the Tribunal could have permitted A to appear remotely from another venue such as her own home, where she could be assisted by a support person. These steps may well have been sufficient to enable A to give evidence on topics that required her input or comment. I therefore do not consider the information before the Tribunal was sufficient to enable it to determine that A was unavailable to give evidence in terms of s 18(1) of the Evidence Act.
[63] However, I consider the Tribunal would have been entitled to exercise its discretion under cl 6(1) to admit the brief of evidence even though it may not have been admissible under s 18. The brief of evidence was a formal statement that A signed in the knowledge that it would be used as evidence in the disciplinary proceeding against Mr Edwards. This fact, together with the level of detail that it provided, meant there was reasonable assurance the information contained in the statement was reliable.
[64] Furthermore, A’s brief of evidence formed a relatively minor part of the material before the Tribunal relating to Mr Edwards’ treatment of her. The issues on which she and Mr Edwards disagreed were also limited in number and nature. Mr Edwards was entitled to address those issues in his own evidence even if his counsel could not put them to A in cross-examination. His counsel could also explore them with the other witnesses who gave evidence before the Tribunal. Where the Tribunal was unable to determine an issue without hearing from A it could proceed on the basis that Mr Edwards’ version of events could not be discounted. It follows I do not consider Mr Edwards was unfairly disadvantaged by the fact that the brief of evidence was admitted.
[65] I am therefore satisfied the Tribunal was entitled to admit A’s brief of evidence as evidence under cl 6.1 of the First Schedule even though it may not have been admissible under s 18 of the Evidence Act.
Particular 1: performing surgery on A when that was inappropriate having regard to her circumstances
[66] The PCC relied on several circumstances in support of its submission that the surgery that Mr Edwards carried out on A was inappropriate. These included A’s age (76 years), the fact that she had only recently begun to suffer pain, the fact that she intended to travel to visit her son in China in three months’ time and her history of slow recovery from earlier surgery on her left leg.
[67] The PCC also contended Mr Edwards should not have attempted to stabilise the second toe by inserting a pin known as a “K-wire” into the joint. This took four attempts to insert into the toe and subsequently caused A considerable pain when it was removed.
[68] Ms Clarke accepted that the surgery Mr Edwards carried out on A’s bunion was an appropriate procedure. However, she considered he ought to have considered alternative and more conservative options to surgery given the fact that the pain had only developed recently. She also noted that A was still leading an active lifestyle for her age.
[69] Ms Clarke did not accept that Mr Edwards had adopted a suitable procedure to address the issues with A’s second toe. She said a metatarsal should only be shortened in extreme cases. This is because it is a weight-bearing bone and there is not a good blood supply to the bone neck area, where the cut to the bone is made. As a result, it will be difficult for the cut to heal. This will be exacerbated where the patient is 76 years of age.
[70] Ms Clarke also said it would have been more appropriate to use screws rather than K-wires to compress the bones together and thereby promote union. She said K- wires were a poor fixation choice because they allow movement of the bones during healing and this will extend the healing process. It also creates the risk that the bones will heal poorly or not at all. The latter is referred to as “non-union”.
[71] Ms Clarke said that it would have been preferable for Mr Edwards to address the issue with A’s second toe using a procedure known as an arthroplasty, in which a
small piece of bone at the first toe joint is removed to create room to allow the rest of the toe to straighten. This procedure does not carry the same risk of non-union. Another more suitable procedure was an arthrodesis, which involves a joint fusion requiring joint removal with cartilage removed from both sides of the joint to allow the two bones to fuse together.
[72] Mr Cook, the orthopaedic surgeon, said that the non-union of the bones in the second metatarsal was caused by the fact that the K-wire did not provide adequate fixation. Ms Clarke agreed. She considered that plates and screws were preferable because they would prevent the toe from moving and thereby hindering the healing process. This aspect of the procedure also caused considerably more discomfort to A than Mr Edwards anticipated. Mr Tillotson agreed that it was unusual, although not unheard of, for four attempts to be required to insert the wires.
[73] Ms Clarke said that at 76 years of age A’s bones would probably have been osteoporotic. Osteoporotic bones heal more slowly, and this leads to other issues. Long periods without weight-bearing can give rise to disuse osteoporosis, which creates a greater risk for the healing process. This risk is even greater where there is underlying osteoporosis. Ms Clarke said that if Mr Edwards had performed the bunionectomy and either an arthroplasty or an arthrodesis, A could have been full weight-bearing immediately after surgery. Instead, the technique he chose resulted in A being required not to place weight on the left foot for a lengthy period after surgery, thereby giving rise to the risks she described.
[74] The Tribunal accepted Ms Clarke’s evidence on these issues. It also considered Mr Edwards’ pre-surgical assessment inadequate. In particular, he had not been in touch with A’s general practitioner to ascertain whether she had any underlying conditions that may render surgery inappropriate. If thorough, a pre-operative assessment would also have revealed the fact that A was planning to travel to China and surgery was likely to interfere with this. In addition, the Tribunal noted that A presented with a history of suffering from Raynaud’s disease and this was likely to slow her recovery.
[75] Mr McClelland contended on Mr Edwards’ behalf that the Tribunal erred in its conclusions because Ms Clarke accepted that A’s age was no barrier to surgery and there was no evidence she had ever suffered from Raynaud’s disease. He also points out that there was no evidence A told Mr Edwards of her forthcoming travel plans. Furthermore, Mr McClelland suggested Mr Edwards was entitled to be encouraged by the fact that A was still leading an active lifestyle despite her age. Mr McClelland also pointed out that the Tribunal appears to have ignored Mr Tillotson’s evidence that A did not have any underlying comorbidities that might suggest surgical intervention was inappropriate.
[76] Mr McClelland also submitted that the Tribunal had ignored Mr Tillotson’s evidence that the level of deformity in A’s foot indicated the foot had been dysfunctional since early weight-bearing years and this was likely to become more problematic as time went on.
[77] I consider the Tribunal was entitled to accept Ms Clarke’s evidence on the issues relevant to this particular. Although I acknowledge there was no evidence that A had suffered from Raynaud’s disease, there remained a wider issue regarding the risk that surgery would result in or exacerbate existing osteoporosis given her advanced years. I am also satisfied that other surgical procedures existed that did not create the risks inherent in an osteotomy performed on a 76-year-old patient. Had either of these been chosen A would not have been required to endure months of keeping weight off her left foot.
[78] Two aspects of Mr Edwards’ pre-surgery assessment were also clearly deficient. First, he did not ascertain whether A had recovered slowly from surgery in the past. If Mr Edwards had raised this issue with either A or her general practitioner, he would have discovered that she had recovered slowly from the earlier surgery to her left leg. This is likely to have been relevant to the assessment of risk for the osteotomy he proposed to carry out. As Ms Clarke pointed out, it suggested a narrowing of the blood vessels in the legs, and this can prolong or delay healing of wounds to that area. As matters transpired the bones in A’s second metatarsal never joined together and A was subsequently required to undertake further surgery by Mr Cook.
[79] Furthermore, a more thorough pre-surgery assessment would also have revealed the fact that A proposed to travel overseas in three months’ time. This may have caused Mr Edwards to consider an alternative approach, or it may have led him to recommend deferring surgery until after A had completed her trip to China.
[80] Taking these factors into account I consider the Tribunal was entitled to find particular 1 had been established.
Particular 2: failing to obtain A’s informed consent to the surgery
[81] This particular related to the level of advice and information Mr Edwards provided A before she agreed to undergo surgery. The Tribunal found that he did not provide A with adequate advice regarding the nature of the surgery he was proposing, the available alternatives and likely recovery time.
[82] My conclusion in relation to particular 1 provides part of the answer to Mr Edwards’ challenge to the Tribunal’s decision regarding this particular because it demonstrates that he did not undertake a sufficiently thorough pre-surgery assessment to be able to provide A with reliable advice regarding likely recovery time.
[83] Mr Edwards challenges the remaining conclusions the Tribunal reached in relation to this particular on the basis that it ignored his evidence and that given by Mr Tillotson. He also says the Tribunal failed to take into account relevant concessions made by A in her brief of evidence.
[84] The evidence against Mr Edwards in relation to the remaining aspects of this particular took two forms. First, the PCC relied on the matters contained in A’s brief of evidence to establish that the oral advice that Mr Edwards gave A before surgery was insufficient to advise her of the nature of the operation and its associated risks. It also relied on the written consent form that A signed on the day of surgery.
[85] An issue arises regarding the weight the Tribunal could give to A’s description of her oral discussions with Mr Edwards before she underwent surgery. Mr Edwards’ trial counsel had no opportunity to cross-examine A regarding these issues and, where they conflicted with Mr Edwards’ version of events, I do not consider it was
appropriate for the Tribunal to prefer her evidence unless it was supported by other evidence. However, the only issue on which the Tribunal expressly accepted A’s evidence was in relation to her assertion that Mr Edwards did not discuss alternative forms of treatment with her. Mr Edwards said that A told him she had tried using orthotics without success and he said there was no other realistic alternative to surgery. Given Mr Edwards’ approach I do not consider the Tribunal’s acceptance of A’s evidence on this point to be a material factor.
[86] Mr Edwards said that, in accordance with his usual practice, he would have explained the proposed surgery with A with reference to the X-rays he had taken when she first consulted him. A said in her brief of evidence that Mr Edwards explained that he was removing a bone in her toe rather than a bone in her foot. The Tribunal noted there may have been some confusion on her part regarding this issue but said it was not satisfied she had been adequately been informed regarding the risks of surgery, the existence of alternative forms of treatment and likely recovery time.
[87] The Tribunal pointed out that the written consent form described the nature of the procedure as being “to realign the left big toe joint and shorten the left 2nd metatarsal shaft and re-align the 2nd toe”. I do not take the Tribunal to take issue with this description. The form also referred to risks associated with “a minor surgical procedure’ but did not specify risks associated with the specific procedure he proposed to perform.
[88] I consider the Tribunal was entitled to find that Mr Edwards did not adequately explain to A, either orally or in writing, the risks specifically associated with the osteotomy including the risk that it would take considerable time to heal. However, I consider the written consent form was sufficient to explain the nature of the procedure A was consenting to. I am not able to reach any conclusion regarding alternative forms of treatment that may have been open to A.
Particular 5: causing harm to A through over-correcting the bunion
[89] As I have already observed, several months after Mr Edwards performed the bunionectomy A developed a hallux varus deformity in which her big toe pointed
outwards. This type of deformity is known to be a risk associated with this particular surgery.
[90] The Tribunal accepted Ms Clarke’s evidence that it was likely that Mr Edwards’s surgical technique caused the deformity. Mr Edwards had videotaped the bunionectomy procedure he performed on A and Ms Clarke viewed this before giving evidence. She described Mr Edwards’ surgical technique as being “coarse” and gave several examples of defects in his surgical technique. Ms Clarke said that removal of a lateral sesamoid led to joint instability, thereby increasing the likelihood of the deformity occurring. The Tribunal was satisfied that Mr Edwards’ substandard surgical technique caused harm to A in the form of the hallux varus deformity.
[91] Mr Cook, the orthopaedic surgeon, agreed with Ms Clarke. He said that the over-correction of the bunion occurred because Mr Edwards undertook an excessive release of the soft tissues on the left side of the big toe. This created an imbalance that caused the toe to point outwards rather than straight ahead.
[92] For Mr Edwards, Mr McClelland points out that an allegation of this nature is not a common phenomenon in disciplinary proceedings involving health professionals. He also suggests it was inappropriate given the fact that the development of a hallux varus deformity is a known risk when a bunionectomy is performed.
[93] Mr McClelland also challenges the Tribunal’s conclusion on the basis that it ignored evidence suggesting A had placed weight on the foot following surgery and this may have caused the deformity. He also pointed out that Mr Tillotson has viewed the videotape of the procedure and said that, although he may have done things differently, the surgery was carried out within the normal bounds of accepted surgical practice.
[94] Substandard surgical technique can obviously cause harm to a patient and Ms Clarke and Mr Cook both considered this to be how A’s hallux varus deformity was caused. This issue involved evaluative judgment of surgical technique and knowledge of the consequences that can follow when surgical technique falls below a
reasonable standard. I consider the Tribunal was entitled to accept the evidence of both Ms Clarke and Mr Cook regarding Mr Edwards’ surgical technique and the likelihood that it caused the hallux varus deformity. There is no basis on which I could reach a different view.
[95]The Tribunal was therefore entitled to find particular 5 established.
Particulars 6, 8 and 9: inadequate post-operative care
[96] These particulars alleged that Mr Edwards failed to provide A with adequate post-operative care by failing to appropriately evaluate and alter her post-operative management plan and by removing the K-wires later than was appropriate and without proper pain management. The PCC also alleged Mr Edwards failed to acknowledge and appropriately manage these adverse outcomes and failed to communicate with A’s general practitioner so as to facilitate her recovery.
[97] The Tribunal accepted Ms Clarke’s evidence that Mr Edwards failed to properly monitor A’s post-operative progress and that he should have communicated with her general practitioner so she could be prescribed appropriate pain relief and medication to guard against infection. Ms Clarke also said Mr Edwards should have arranged for an X-ray to be taken once the foot began to swell when she placed weight on it. In addition, Mr Edwards allowed untrained clinical staff to perform tasks such as changing A’s dressings.
[98] On 8 August 2013 Mr Edwards removed the K-wires without offering A any pain relief. This led to A suffering considerable pain when the wires were removed. This is likely to have been caused by the fact that the wires had been in position for approximately four months.
[99] As Mr McClelland points out, however, Mr Edwards plainly did provide A with post-operative care because he saw her on six occasions during the five-week period following surgery. Between 27 May and 19 June 2013 he and/or his clinical staff saw her on a weekly basis. Mr Edwards also took X-rays of A’s foot on 19 June 2013 and said that these showed the second metatarsal bones beginning to join
together. Ms Clarke viewed the same X-rays and said they did not show that the bones had begun to heal.
[100] The most significant aspect of Ms Clarke’s evidence in this context relates to Mr Edwards’ failure to recognise and draw A’s attention to the fact that the bones in the second metatarsal were not joining together. Mr Edwards did not take an X-ray of A’s foot immediately after surgery. However, notes made after X-rays were taken on three occasions between 19 June and 8 August 2013 record that the bones were “healing slowly”, that the healing was “progressing” and that there were “early signs of ossification”. The records do not explain why the decision was made to remove the K-wire on 8 August 2013. A note made following the final appointment on 17 September 2013 records that A “still presents with post-operative swelling, however slowly improving”. The last mention of swelling was on 13 May 2013.
[101] Ms Clarke also criticised the standard of the X-rays taken on these occasions. She points out that there is no standardisation or uniformity in these and there is no record of the angle of the images. The significance of this is that the extent to which a foot is healing can look quite different depending on the angle of the image.
[102] Ms Clarke said that when the X-rays taken during the period from 22 May until 28 August 2013 are viewed in sequence it can be seen that the potential for non-union was observable from an early stage. She says that throughout this period Mr Edwards ought to have been advising A that she was at risk of non-union and may require further surgery. He should also have considered taking steps to address this outcome, such as obtaining a second opinion or using a bone stimulator. Instead, when he saw her for the final time on 17 September 2013, Mr Edwards merely told her that the post- operative healing process would take time and she needed to keep weight off her left foot. The Tribunal was obviously entitled to accept Ms Clarke’s evidence on this issue.
[103] It seems that the delay in removing the K-wires occurred because Mr Edwards was concerned that the bone in the second toe had not healed. Given that fact I do not consider Mr Edwards can be blamed for leaving the K-wires in place for as long as he did. However, this is likely to have resulted in considerable pain when the wires were removed, possibly because the skin and/or bones had become attached to the wires
during the healing process. Though he may not have anticipated it, Mr Edwards ought to have offered A some form of pain relief once it became clear the removal of the wires was causing her considerable pain.
[104] I accept that it will generally be a matter of judgment for a surgeon to determine whether, and at what stage, to communicate with a patient’s general practitioner. For the reasons I have already given I consider it would have been prudent for Mr Edwards to do this prior to undertaking surgery on A. I also consider Mr Edwards should have spoken to A’s general practitioner as time went on and the bone did not heal. He or she may have been able to provide information to explain the delay in the healing process or some suggestion as to what should be done to rectify the situation. At the very least this would have resulted in A being prescribed prophylactic antibiotics and pain relief. I note that Mr Tillotson acknowledged it would have been prudent for Mr Edwards to take this step.
[105] I am not required to reach any conclusion as to whether Mr Edwards’ conduct fell below the required standard when he permitted his clinical staff to undertake tasks such as changing A’s dressings. The Tribunal referred to this allegation but made no finding in relation to it. It therefore seems likely that the Tribunal did not consider it to have been an issue of any significance.
[106] Having regard to these conclusions I consider the Tribunal was entitled to conclude that particulars 6, 8 and 9 were established. The most serious aspect of these particulars is Mr Edwards’s failure to keep A advised regarding the potential for non- union to occur and to plan for that eventuality.
Particular 7: the osteotomy and post-surgical care caused harm to A because the second metatarsal bone failed to heal
[107] The Tribunal did not give detailed reasons for finding this particular had been established. It noted that Mr Tillotson had accepted in cross-examination that the least invasive and most effective procedure for A’s condition was an arthrodesis and not an osteotomy. The Tribunal then observed that the harm was caused to A by the second metatarsal bone failing to heal and that this was caused by the poor choice of surgery.
It concluded that the second metatarsal bone failed to heal as a result of Mr Edwards’ surgery and post-operative care.
[108] I have already found that the particulars relating to post-surgical care were established. This leaves an allegation that the osteotomy caused harm to A because it was a poor choice of procedure that resulted in the second metatarsal bones failing to heal.
[109] The lack of reasoning given by the Tribunal for this particular probably reflects the fact that in some respects it overlaps the allegations underpinning particular 1. I have already concluded the Tribunal was entitled to find this particular established, in part because Mr Edwards should have chosen a procedure such as an arthrodesis or an arthroplasty which carried less risk for A.
[110] Ms Clarke told the Tribunal that the non-union of the second metatarsal bones was probably caused both by Mr Edwards’ poor procedure selection and poor surgical technique. It was also possible that A suffered from poor circulation and osteoporotic bone condition. The surgery resulted in harm being caused to A through the non-union of the metatarsal bones and this had to be rectified by further surgery.
[111] Mr McClelland points out that, although Mr Tillotson accepted an arthrodesis would have been a more appropriate surgical option than an osteotomy, he also maintained that an osteotomy was acceptable. That may be so, but Ms Clarke was clear in her view that, for the reasons she identified, an osteotomy carried considerable risk for a patient of A’s age when compared with the alternative procedures to which she referred. It was open to the Tribunal to accept her evidence regarding that issue and I have no basis for taking a different view.
[112]The Tribunal was therefore entitled to find particular 7 established.
Particulars 11 and 12: failing to keep adequate contemporaneous clinical records and modifying clinical records
[113] Ms Clarke told the Tribunal that the clinical notes Mr Edwards created in relation to A were deficient in several respects. First, they did not follow the
recognised ‘SOAP’ format. This stands for Subjective, Objective, Assessment and Plan. More importantly, Ms Clarke said that virtually no records were kept of the pre- operative examination when A first consulted Mr Edwards. The record of the surgical procedure was similarly defective because it recorded several acts being done during surgery when those acts cannot be seen on the videotape of the surgery. Nor did Mr Edwards record that it took him four attempts to insert the K-wire in the second toe.
[114] Ms Clarke also said that Mr Edwards kept minimal records of A’s post- operative care. The original copy of Mr Edwards’ clinical notes does not state the date and author of individual notes. It was also not clear from the notes whether Mr Edwards had made the notes or whether they had been created by a member of his staff.
[115] On two occasions the notes had been modified several months later but no record was made of the fact that this had occurred.
[116] Mr Edwards accepted that his clinical records did not contain full details of matters discussed and treatment administered during appointments. He also accepted there were inaccuracies in the report relating to the surgical procedure. Mr Tillotson described Mr Edwards as being sloppy and undisciplined in relation to his record keeping obligations.
[117] There was therefore ample evidence to enable the Tribunal to conclude these particulars had been established.
Complainant B: (particulars 13-23)
[118] B sought Mr Edwards’ advice on 9 April 2015 because she was experiencing pain in the central ball of her left foot. Mr Edwards diagnosed a corn in the vicinity of where the pain was being felt. He also diagnosed a bunion deformity of the left big toe and excessively long third metatarsals. He recommended that B should undergo surgery on the bunion and the second and third toes and said these procedures would cost $15,000. When she told him this was too expensive, he called her a few days later and said he could use another technique involving the use of K-wires instead of
plates and screws. This would reduce the cost to $9,500. The disadvantage of the alternative technique was that it would require two additional weeks of non-weight- bearing recuperation. B agreed to this arrangement.
[119] Mr Edwards corrected the bunion deformity on 23 April 2015. B had been expecting that both procedures would be completed at the same time. On the day of the operation Mr Edwards told B that the pressure bandage around her ankle could not remain in place for more than 80 minutes. This meant the surgery was required to finish after Mr Edwards had straightened B’s big toe. A second procedure was required to remove the corn. This was meant to occur three to four weeks after the first procedure to allow the swelling from that procedure to diminish. The second procedure was never performed.
[120] B subsequently sought a full refund of the fee she had paid Mr Edwards. He offered her a partial refund and she declined to accept this.
[121] The professional relationship between B and Mr Edwards subsequently deteriorated and she sought advice from Mr Aaron Cook in August 2015. He told her that the pain in her foot was caused by a verruca rather than a corn and that it could be treated using a product that could be purchased from a pharmacy. Surgery was not required. He also told B he could not undo the damage that had been done to her big toe but that he could remove the K-wire Mr Edwards had inserted in it.
[122]The Tribunal found the following particulars established:
(a)Failing to provide B with the opportunity of giving informed consent to undergo the surgery he performed on her.
(b)Offering B a financial inducement to undergo the surgery and failing to provide a refund when the surgery was not fully completed.
(c)Undertaking surgery without a full pre-operative assessment.
(d)Causing harm to B by failing to address her principal complaint.
(e)Failing to properly plan for the length of time the surgery would take to perform.
(f)Failing to take responsibility for B’s post-operative care.
(g)Failing to adequately communicate with B’s general practitioner (GP), and failing to refer her to another specialist when she requested her clinical file.
(h)Speaking to B in an inappropriate and unprofessional manner.
(i)Failing to keep adequate contemporaneous clinical notes of B’s care.
Particular 13: failure to obtain informed consent
[123] Complainant B died on 5 June 2018. Her original complaint to the Commissioner and notes of an interview she subsequently undertook with the PCC were ruled admissible by consent on the basis that she was unavailable as a witness.
[124] Particular 13 contained two allegations. The first was that Mr Edwards failed to provide B with sufficient information regarding the possibility that more than one surgical procedure may be required. The second was that he obtained B’s written consent to the surgery on the day it was to be performed. This did not give B sufficient time to make an informed decision as to whether she wished to undergo surgery.
[125] The Tribunal noted that Mr Edwards said his usual procedure was to provide his patients with the written consent form on the day surgery was to take place. He would then go through the form with them. However, he could not remember whether he had advised B that she may need to undergo more than one surgical procedure. He accepted he ought to have done this. Mr Edwards also said that the surgery could not be completed in a single session because he encountered scar tissue from an earlier operation that he needed to remove.
[126] The written consent form that B signed did not refer to this possibility. Furthermore, none of the contemporaneous notes that Mr Edwards made refer to it,
nor to the risks inherent in the procedure and alternative treatments that might be available. Mr Tillotson also accepted it would have been appropriate to alert B to the possibility of two surgeries being required prior to surgery commencing.
[127] The Tribunal held that Mr Edwards failed to provide B with sufficient information regarding the possibility that surgery would need to occur in two stages. This meant he had failed to adhere to required standards and provide B with the opportunity of giving her informed consent to the possibility that she may need to undergo more than one surgical procedure.
[128] The fact that Mr Edwards elected to use a pressure bandage or tourniquet to restrict blood supply to the foot meant that he would have a limited time within which to complete both procedures. He must have appreciated that, if he encountered an unexpected issue during the first procedure, he would not have sufficient time to complete the second. This is what ultimately occurred because Mr Edwards encountered scar tissue and later stopped the procedure when B complained of discomfort.
[129] I consider Mr Edwards was required to make sure B was aware of the risk that this might occur. This is particularly so because she said in her complaint to the Commissioner that he had assured her during her first appointment that both procedures could be completed in one session. The written consent form did not refer to the possibility that two procedures may be required and Mr Edwards cannot recall giving her this advice orally. Given B’s reaction to what occurred it is plain she was surprised a further procedure would be required. It is therefore likely that she did not know she may be required to undergo more than one surgical procedure. I therefore consider the Tribunal was entitled to conclude Mr Edwards did not obtain B’s informed consent to the procedure.
Particular 14: offering B a financial inducement to undergo surgery by reducing the cost
[130] This allegation relates to the fact that Mr Edwards offered to undertake the surgery for a reduced fee using K-wires instead of plates and screws. The Tribunal noted that Ms Clarke had said that this raised ethical concerns. These related to the
appropriateness of Mr Edwards contacting a patient to discuss reduction in the cost of surgery.
[131] The Tribunal was satisfied that the reduction in price amounted to an inducement for B to undergo surgery. It also agreed with Ms Clarke that the method of fixation should always be based on the need to provide proper care to the patient rather than cost. It also noted that Mr Tillotson had agreed that the use of K-wires in this context was not the best means of fixation for the procedure B was to undergo.
[132] Mr McClelland challenges the Tribunal’s reference to Mr Tillotson’s evidence because it ignored the fact that Mr Tillotson also said the use of K-wires was an acceptable method of fixation. However, this passage of Mr Tillotson’s cross- examination makes it clear that, although the use of K-wires was an available option and could not be regarded as substandard, it was not the best option and that the use of plates and screws was the preferred option.
[133] An issue obviously arises as to whether Mr Edwards advised B that the use of K-wires was not the preferred option to achieve the best result. However, I accept Mr McClelland’s submission that this particular does not allege Mr Edwards used an inappropriate form of fixation. Rather, it is whether he provided B with a financial inducement to undergo surgery.
[134] In some circumstances it will obviously be wrong to offer a patient a reduction in fees to undergo a surgical procedure. Examples may include situations where the patient does not require the procedure in question or where the procedure is inappropriate for the patient’s needs. In the present case, however, I do not consider the evidence establishes that it was inappropriate for Mr Edwards to offer to undertake the surgery for a reduced fee even though it involved the use of K-wires rather than plates and screws.
[135] I therefore differ from the conclusion of the Tribunal on this particular and find it has not been established.
Particular 15: failure to offer a refund
[136] As I have already observed, Mr Edwards offered to refund B one-half of the fee he had charged her after it became apparent she would not be undertaking the second procedure. She refused this offer. The issue arose again some months later after B made a complaint to the Commissioner. However, B did not approach Mr Edwards again directly to seek a refund of the entire fee.
[137] Mr Edwards said he acted on legal advice in refusing to provide B with a full refund. In finding this particular established the Tribunal said it was not satisfied the initial offer of a refund “was ever followed through by Mr Edwards in a meaningful way”. It noted that he did not offer to refund his fees after B laid her complaint with the Commissioner.
[138] I take a different view from the Tribunal. I do not consider Mr Edwards was required to take matters further after B refused to accept a partial refund. Nor do I consider this series of events engages the disciplinary provisions of the Health Practitioners Competence Act.
[139]I do not consider this particular has been established.
Particular 16: failure to adequately plan for the length of time the surgery would require
[140] The Tribunal accepted Mr Edwards acted responsibly in ending the surgery after completing the bunionectomy. However, it was also satisfied he failed to adequately plan for the possibility that the surgery would take longer than 80 minutes. It provided no analysis or reasons for this conclusion.
[141] As I have already observed, Mr Edwards must have appreciated that he only had a finite period during which he could operate whilst the blood supply to B’s foot was restricted by the tourniquet. If issues arose that extended the time taken to complete the first procedure he must have known he may not be able to complete the second. I have also held that Mr Edwards should have advised B of that risk. Other
than this, however, I do not know what Mr Edwards could have done to plan for the possibility that he may not be able to complete both procedures in a single session.
[142] I therefore consider the Tribunal was wrong to conclude this particular was established.
Particular 17: causing harm to B by failing to resolve her presenting condition and causing her ongoing pain
[143] To the extent that this particular is based on an allegation that Mr Edwards caused harm to B by failing to undertake the second procedure I do not consider it could be established. The Tribunal accepted Mr Edwards acted appropriately by not undertaking the second procedure once B complained of discomfort.
[144] In his closing submissions before the Tribunal, counsel for the PCC stated that, in order to find this particular proved, it was only necessary for the Tribunal to find that Mr Edwards’s treatment failed to resolve B’s condition and that this caused her ongoing pain. I do not accept that this was correct. Before the Tribunal could find the particular established it needed to be satisfied that the surgery by Mr Edwards caused harm to B. Failure to resolve the condition would not be sufficient of itself even if the continued existence of the condition caused B ongoing pain.
[145] The Tribunal did not refer to this submission in finding the particular established, but it began its conclusory paragraph by stating that Mr Edwards caused harm to B by not addressing her chief complaint. This was incorrect for the reason I have just given. It then said “he undertook surgery without a full pre-operative assessment”.
[146] The Tribunal also noted, however, that during the initial post-operative period B was experiencing frequent pain in the top of her big toe where the K-wires were located, and she also experienced an unusual sensation when she tried to bend two other toes. The Tribunal said that B was left with a non-functional foot and a toe that was stiff and did not touch the ground. She also had pain and swelling.
[147] It is noteworthy, however, that when B consulted Mr Cook in August 2015 she complained only about the pain from the K-wires and what he diagnosed to be a verruca. The latter resolved after B applied wart cream to the affected area. Mr Cook also removed the K-wires. Mr Cook did not refer to B complaining about pain from any other source. I have therefore concluded Mr Edwards did not cause harm to B through the surgery that he undertook on her.
Particular 18: failing to acknowledge and appropriately manage the adverse outcomes of surgery
[148] Mr Edwards was in the United States on a training course on 28 April 2015 when B attended her first post-operative appointment. She was seen on this occasion by a non-clinical member of Mr Edwards’ staff. When she attended a further appointment on 1 May 2015 her foot was swollen and causing her pain. On this occasion she was seen by Mr Edwards’ staff but Mr Edwards subsequently reviewed photographs of the wound that were taken during her visit. Later that day he requested B’s general practitioner to prescribe a prophylactic course of antibiotics to prevent infection.
[149] B saw Mr Edwards’ staff when she attended further appointments on 4 and 7 May 2015. She saw Mr Edwards at appointments she attended on 11, 14 and 21 May 2015. On the latter occasion he noted some swelling but considered the wound was healing well.
[150] In her complaint to the Commissioner B said that when she began experiencing issues with her toes Mr Edwards told her it would take up to 12 months for her to fully recover. When she asked for her X-rays he told her it was too soon or unnecessary.
[151] B subsequently asked her general practitioner to arrange for her to obtain a second opinion. When Mr Edwards learned of this he became upset and the relationship between them deteriorated. She left his care a short time later. However, she did not seek Mr Cook’s advice until August 2015.
[152]The Tribunal found this particular established for the following reasons:29
[203] Mr Edwards failed to adequately take responsibility for [B’s] post- operative care, especially in light of the adverse outcomes of [B’s] surgery. One aspect of podiatry care is that podiatrists must arrange for care of their patients when they are not present and the ultimate responsibility for patients’ care remains with the podiatrist. This is particularly relevant in Mr Edwards’ case where for a period of time during May 2015 he was undertaking a training course in the United States while trying to manage post-operative care of [B]. He did not clinically examine [B] as would be a reasonable expectation for post-operative wound care (particular 18).
[153] I do not consider the matters referred to in this paragraph were sufficient to establish this particular and there is no other evidence to support it. Although Mr Edwards was not present during three of the initial appointments he reviewed what had occurred. There is no evidence to suggest that post-operative treatment would have been different if he had been physically present on these occasions. Nor is there any complaint made regarding the actions he took following his return from the United States. I therefore consider the Tribunal erred in concluding this particular was established.
[329] As to the decision in Cooper, the PCC submitted that there is no conflict between that case and the present, and therefore no need for the Tribunal to distinguish it. In Cooper, a disciplinary response was not required as the doctor believed his conduct was an acceptable and common practice. In the present case, the Tribunal expressly held that particular 5 would not have warranted a disciplinary response on its own.
[330] I see no error in the Tribunal’s approach. The regulatory framework clearly prohibits the use of client testimonials and Mr Edwards used such material for advertising purposes. The issue of whether other health professionals may have done the same or similar does not affect this fact. The Tribunal was therefore entitled to find this particular established and also to determine that it would not attract a disciplinary response on a standalone basis.
Analysis: Charge One
[331] It is now necessary to analyse the overall gravity of Mr Edwards’ conduct in relation to those particulars I have concluded the Tribunal was entitled to find
38 Professional Conduct Committee v Cooper, above n 35, at [112].
established under Charge One. Before doing so I propose to summarise the particulars that I have concluded the Tribunal was not entitled to find established.
Summary of particulars that have not been established
[332] The first of these relates to the offering of financial inducements to complainants B and D. I also found that Mr Edwards was not required to take further steps regarding the offering of a refund to complainant B.
[333] In addition, I have concluded the Tribunal should not have found that Mr Edwards failed to adequately plan for the length of the surgery on B, or that he caused harm to B by failing to resolve her presenting condition and thereby causing her ongoing pain. I have also found that the Tribunal was not entitled to conclude Mr Edwards failed to acknowledge and manage the adverse outcomes of B’s surgery or that he failed to communicate adequately with B’s general practitioner.
[334] In relation to complainant C, I have found that the Tribunal erred in concluding that Mr Edwards failed to give C an adequate opportunity to make an informed opinion as to whether to undergo surgery. I also found the Tribunal should not have found the particular relating to the removal of the K-wires from C’s toes established, and that there was insufficient evidence to enable it to conclude he had failed to manage the adverse outcomes of C’s surgery. In addition, I found that the Tribunal was not entitled to conclude Mr Edwards had failed to communicate adequately with C’s general practitioner following surgery.
[335] Furthermore, I have concluded the Tribunal should not have found that Mr Edwards failed to recommend that complainant D should undertake a more conservative remedial option than surgery. I have also found there was insufficient evidence to enable the Tribunal to conclude Mr Edwards had failed to communicate with D’s general practitioner to facilitate her recovery.
[336] In relation to complainant E, I have found there was insufficient evidence to enable the Tribunal to conclude that E did not give informed consent before undergoing surgery.
[337] Finally, I have found the Tribunal was not entitled to conclude Mr Edwards failed to give complainant F an opportunity to seek a second opinion following surgery.
Assessment of gravity of particulars that have been established
[338] I propose to deal with this issue by summarising the particulars that have been established in descending order of seriousness.
Undertaking endoscopic surgery without F’s consent
[339] I consider the most concerning aspect of Mr Edwards’ conduct to be the endoscopic surgery he carried out on complainant F without her consent. F was just 17 years of age and both she and her father told Mr Edwards they did not want him to conduct the first surgery using an endoscopic technique. He deliberately disobeyed those instructions. This involved not only a complete failure to obtain F’s informed consent but also actual dishonesty on Mr Edwards’ part.
Causing harm to patients by inappropriate or substandard surgery
[340] The next most concerning aspect of Mr Edwards’ conduct is the fact that he caused harm to several complainants through the surgery he carried out on them. This is one of the most serious allegations that can be made against a health practitioner because such an outcome is the antithesis of what health professionals endeavour to achieve. As the PCC acknowledges, a less than optimal outcome may occur in any surgery and, like all human beings, surgeons are fallible and can make mistakes. However, a pattern of causing significant harm to patients may establish that a health professional is not sufficiently skilled or careful to be entrusted with the care of patients.
[341] I have found this particular to have been established in relation to complainants A, C, D and F. The most serious of these is complainant D, whose lateral plantar nerve was severed when Mr Edwards carried out percutaneous surgery on her. The surgery also caused scarring and thickening to the plantar fascia on the left side. Mr Cook was of the firm opinion that Mr Edwards should not have carried out surgery of this type
because it amounts to a blind incision in which the surgeon cannot know the location of the tip of the blade. Mr Edwards also made the incision at a different location to where it would usually be made. Mr Cook considered the procedure to be very unsafe and “very, very risky”. Standing alone, I consider this allegation to be particularly serious given that the surgical procedure Mr Edwards adopted was highly unconventional and resulted in significant harm to D.
[342] A similar outcome occurred when Mr Edwards performed surgery on F. Her medial plantar nerve was severed when Mr Edwards performed surgery on her using the endoscopic technique. This caused F significant discomfort and subsequently required further surgery by Mr Muir to repair.
[343] Substandard surgical technique is also likely to be responsible for the fact that Mr Edwards caused A to suffer from a hallux varus deformity. This was caused when Mr Edwards removed a lateral sesamoid, which led to joint instability. Similarly, poor technique is likely to have resulted in C developing thickened toes following the surgery Mr Edwards performed on her. She has a large uncomfortable lump on the side of the second toe on her right foot, and a bump on the top of the second toe on her left foot. These issues have caused her significant and ongoing discomfort and pain.
[344] I consider the next most serious aspect of Mr Edwards’ conduct to be the inappropriate surgery that he carried out when he shortened the metatarsal on A’s second toe. In part this was caused by his failure to take into account her advanced age and the fact that she had a history of healing slowly from surgery. If surgery was an appropriate option for A it should have taken the form of an arthrodesis or arthroplasty, which would not have carried the same risk of non-union of the bones in her toe. Mr Edwards also used K-wires when these provided insufficient stability to enable the bones in A’s toes to knit properly. This meant A was required to undergo further surgery by Mr Cook.
Failure to advise of potential risks and complications of surgery
[345] This issue arises out of the allegation that Mr Edwards failed to obtain the complainants’ informed consent. I have concluded the Tribunal was entitled to find
that Mr Edwards failed to advise three of the six complainants of the potential risks and complications arising out of the surgery he was recommending. In the case of complainant A, this related to her likely recovery time given her advanced age. This issue was particularly relevant because she was planning to travel overseas, a fact Mr Edwards would have discovered if he had enquired as to her future plans.
[346] In relation to complainant B, Mr Edwards failed to advise her that the use of a tourniquet to restrict blood flow to the area of the incision meant the duration of the operation was limited. This created a risk that she would require a second operation.
[347] In the case of complainant C, Mr Edwards failed to act on her disclosure that she was taking medication for anxiety. She said she would have remembered if Mr Edwards had advised her there was a risk she would not be able to bend her toes following surgery. She said this would have raised “a real alarm bell”. She also had a fear of needles and Mr Edwards failed to advise her he would be using K-wires to stabilise the bones in her toe following surgery. This was a matter she said would have “raised a huge red flag” for her. The fact that Mr Edwards did not properly explain the likely recovery time is reflected in the fact that she told her employer she would only need a short recovery time following surgery.
Failure to maintain adequate clinical notes and modifying clinical notes
[348] The evidence confirms that Mr Edwards maintained sparse contemporary clinical notes. The fact that he subsequently modified notes to include more detail would not be particularly objectionable in the absence of any inappropriate motive. I do not consider those issues would justify a disciplinary response of any magnitude on a standalone basis.
[349] However, the same cannot be said for the instances where Mr Edwards modified his notes after he learned a complaint had been made about him. Any significant modification of contemporaneous clinical notes in those circumstances obviously leads to an inference that the practitioner is “backfilling” the notes to create a misleading impression for those investigating the complaint. At the very least, modified notes should contain a record of when they were modified to ensure those
investigating the complaint are not misled by the modifications. The notes that Mr Edwards modified did not contain this information.
Failure to manage adverse outcomes of surgery and provide adequate post-operative care
[350] I consider the most significant of these instances is the failure by Mr Edwards to advise complainant A that there was a risk of non-union following the surgery to shorten her second toe. He must have been aware during the months that followed surgery of the developing risk that union of the bones would not occur. Ms Clarke said the X-rays that were taken during this period showed the potential for non-union from an early stage. She says Mr Edwards ought to have advised A of this fact and prepared her for the possibility that further surgery may be required. He should also have offered A pain relief when it became clear she was suffering from significant pain during removal of the K-wires.
[351] I have also found that the events that occurred during D’s percutaneous surgery ought to have alerted Mr Edwards to the prospect that he had caused damage to a nerve. He should therefore have adopted a cautious approach when D reported issues including neuropathic type pain on the lateral part of her left foot following surgery. Ms Clarke suggested he ought to have arranged for her to undergo a neurological assessment once she complained of numbness to the feet following surgery.
[352] The deficiencies in Mr Edwards’ post-operative treatment of D are aggravated by the fact that he recommended that D should undergo further surgery to remove scarring at a cost of approximately $3500. Mr Cook was clear in his evidence that Mr Edwards needed to have “a big discussion” with D about the predictability of the outcome before he recommended further surgery. This was because he had already put D through one surgery with a painful outcome. Mr Edwards therefore needed to carefully consider whether he should put her through another operation when the outcome of that was also likely to be unpredictable.
[353] In addition, Mr Edwards should have adopted a more proactive approach once complainant F began to complain consistently of numbness to the underside of her right foot. Instead he told her the numbness would heal over time and that it was
preferable to the pain she had been experiencing before the surgery. Mr Edwards was clearly alert to the possibility that he had damaged a nerve during surgery because he told her this was possible but he considered it unlikely.
[354] Mr Edwards also failed to provide complainant C with clear advice as to whether and to what extent she was able to place weight on her foot following surgery.
Failure to adequately communicate with patient’s general practitioner
[355] I have only found this particular to be established in relation to complainant F. This is because I was satisfied that, if Mr Edwards had contacted F’s general practitioner once F began complaining of numbness and pain in her right foot, it is likely that steps would have been taken immediately to obtain a second opinion. This is in fact what occurred when F contacted her general practitioner in May 2017. At that point her GP immediately referred her to Mr Muir, who ultimately facilitated her recovery.
Failure to make an informed diagnosis
[356] I have found the Tribunal was only entitled to find this particular established in relation to complainant F. It related to the fact that, due to F’s young age, her history of pain and muscular changes, Mr Edwards undertook insufficient assessments and investigations to enable him to make an informed diagnosis and recommend plantar fascia surgery. However, I also found that Mr Edwards’ diagnosis was likely to be correct. I therefore consider the culpability of this allegation falls towards the lower end of the scale in terms of seriousness.
Overall assessment Charge One
[357] The fact that Mr Edwards was prepared to carry out endoscopic surgery on a patient who had expressly told him she did not want to undergo that type of surgery is obviously a matter of significant concern, as is the fact that Mr Edwards was prepared to modify his clinical notes once he learned complaints had been made against him. These transgressions constitute malpractice of sufficient seriousness to amount to
professional misconduct. They also bring discredit to Mr Edwards’ profession and constitute professional misconduct for that reason as well. These actions clearly adversely affect his fitness to practise as a podiatric surgeon and a disciplinary sanction is justified.
[358] The fact that Mr Edwards has caused significant physical harm and pain to three of the six complainants through use of unconventional or substandard surgical technique constitutes both malpractice and/or negligence that also adversely affects Mr Edwards’ fitness to practice. They also bring discredit to his profession. These actions amount to professional misconduct that warrants a disciplinary response.
[359] Standing alone, Mr Edwards’ failure to provide adequate post-operative care and to manage adverse outcomes of surgery constituted negligence that may not have amounted to professional misconduct. However, the position changes when these failings are considered in light of Mr Edwards’ response to the damage his actions caused to four of the complainants. Mr Edwards was reluctant to accept his surgical technique may have caused damage to both D and F even though he was clearly aware this was a distinct possibility. Rather than adopt a proactive approach and seek answers to the issues that had arisen, Mr Edwards effectively disclaimed responsibility and, in the case of D, recommended further surgery even though he must have known the outcome of this was unpredictable. These actions also amount to malpractice and/or negligence that constitutes professional misconduct and justify a disciplinary response.
Charge Two
[360] I consider the most serious aspect of the conduct alleged by Charge Two is that which Mr Edwards acknowledges. He was prepared to carry out podiatric surgery on an unsupervised basis on four separate occasions when he knew the Board had forbidden him from doing so. He had not recorded any of these in his logs even though this was also a condition imposed by the Board. Furthermore, Mr Edwards’ actions would not have been detected but for the fact that one of the four patients lodged a complaint against him. I consider this constitutes malpractice that amounts to professional misconduct and justifies a disciplinary response.
[361] The next most serious aspect of Charge Two is that Mr Edwards failed to obey a direction by the Board that required him to amend his website to give those who accessed it notice of the fact that he had been suspended from acting as a podiatric surgeon. His explanation that he did not consider he needed to do this because he was not accepting any further work does not detract from the seriousness of this conduct.
[362] I regard the remaining particulars as slightly less serious even though the website plainly continued to promote Mr Edwards’ skills as a podiatric surgeon. The culpability of this conduct is lessened by the fact there is no evidence Mr Edwards actually carried out work as a podiatric surgeon during this period.
[363] I would regard the actions underpinning Charge Two as amounting to malpractice by Mr Edwards that, standing alone, would not amount to professional misconduct justifying a disciplinary response. However, it is elevated to the level of professional misconduct justifying such a response when it is considered alongside the remaining allegations.
Penalty
The Tribunal’s decision
[364] The Tribunal noted that it was able to impose one or more of the penalties set out in s 101 of the Health Practitioners Competence Act. The penalties available included cancellation of registration, suspension for up to three years, a fine not exceeding $30,000, the imposition of conditions on practice for a period not exceeding three years and censure. The Tribunal also noted that it was entitled to make an order to require the practitioner to contribute to the costs and expenses of the PCC and the Tribunal.
[365] The Tribunal adopted the principles set out in Roberts v Professional Conduct Committee, in which Collins J identified that the penalty should be that which:39
(a)Most appropriately protects the public and deters others.
39 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at [44]-[51].
(b)Facilitates the Tribunal’s important role in setting professional standards.
(c)Recognises the punitive function that penalties imposed by the Tribunal may have.
(d)Allows for the rehabilitation of the health practitioner.
(e)Promotes consistent penalties imposed in similar cases.
(f)Reflects the seriousness of the misconduct.
(g)Is the least restrictive penalty appropriate in the circumstances.
(h)Looked at overall, is the penalty which is fair, reasonable and proportionate in the circumstances.
[366] The Tribunal also referred to Singh v Director of Proceedings, in which Ellis J noted that the power to discipline must be exercised in light of, and consistently with, the principal purpose of the Act – namely to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practice their professions.40
[367] After referring to other cases, the Tribunal noted that Mr Edwards’ conduct involved several aggravating features:
(a)It amounted to a severe departure from several professional standards and guidelines including those related to pre-operative, intra-operative and post-operative care. It included failing to obtain informed consent, causing harm by performing surgical procedures, failing to maintain adequate notes, modifying notes and inducing patients to undergo surgery. The Tribunal considered the conduct constituted both negligence and malpractice.
40 Singh v Director of Proceedings [2014] NZHC 2848 at [55].
(b)The offending involved six complainants and, in relation to the first charge, 59 separate particulars. Of these, approximately one-sixth were not established. Given the number of complainants the conduct could not be described as a “one off” occurrence. The extensive and recidivist nature of the misconduct showed that Mr Edwards was unwilling to admit his mistakes and undergo professional development.
(c)The offending involved misleading and deceptive conduct in relation to both the modification of records in the first charge and Mr Edwards’ dealings with the Board in the second charge.
(d)Mr Edwards continued to deny responsibility for much of his conduct.
(e)The six complainants suffered ongoing and significant complications as a result of the surgeries Mr Edwards carried out on them.
(f)Mr Edwards has a disciplinary history because he was convicted of a serious assault in 2015. Although this was unconnected with his professional practice, it was found to reflect adversely on his fitness to practice. This offending resulted in the Tribunal imposing both a censure and conditions on his scope of practice that included a requirement to complete an anger management course.
[368] The Tribunal considered that the seriousness of the professional misconduct encompassed by the first charge, aggravated by Mr Edwards’ failure to work responsibly with the professional oversight afforded to him in the second charge, meant that censure and cancellation of registration was the only appropriate penalty to ensure maintenance of professional standards and protection of the public.
[369] In reaching this conclusion the Tribunal accepted that cancellation of registration was reserved for the most serious forms of professional misconduct. However, it considered that an order for suspension would not reflect the seriousness of the departure from expected professional standards. Nor did it consider the penalty should be reduced to reflect the fact that Mr Edwards has been suspended from
practising as a podiatric surgeon since December 2019. The Tribunal was not satisfied this was a case in which the rehabilitation of the practitioner warranted a penalty less than cancellation. Furthermore, Mr Edwards’ decision to perform podiatric surgeries without supervision in contravention of the condition imposed by the Board demonstrated a gross disregard for patient safety and wellbeing, as well as an unwillingness to undergo professional development and a contempt for his professional body.
The appeal
[370] Mr McClelland does not contend the Tribunal applied the wrong principles in deciding to cancel Mr Edwards’ registration. However, he contends cancellation was not justified having regard to the fact that Mr Edwards carried out the surgeries on the complainants in good faith and with the intention of providing them with relief from serious pain and discomfort. Mr McClelland also submits that Mr Edwards has acknowledged there was room for improvement in his practice and has made changes to his administrative procedures, including clinical note keeping and consent forms. He also submits the Tribunal ought to have placed weight on the positive reports prepared by Mr Keith Aitken, a podiatric surgeon, over a nine-month period during which Mr Aitken supervised Mr Edwards with the approval of the Board.
[371] Mr McClelland submits the Tribunal was wrong to cancel Mr Edwards’ registration. He contends that it would have been sufficient for the Tribunal to censure Mr Edwards and suspend him from practising podiatric surgery (but not podiatry) for a further three-month period. He also submits the award of costs should be reduced to the sum of $20,000.
Decision
[372] The correctness of the Tribunal’s penalty decision now needs to be reassessed having regard to the principles identified by it and in light of the conclusions I have reached regarding Mr Edwards’ conduct.
[373] I begin by reminding myself that before a decision is made to cancel a practitioner’s registration it is necessary to consider whether alternative avenues are
available that are proportionate to the wrongdoing and that will meet the overall objective of protecting the public from future harm at the hands of the practitioner.41
[374] Although I have concluded the Tribunal was not entitled to find several particulars were established, I have upheld its conclusions on the most serious aspects of Mr Edwards’ conduct. As will already be evident, these relate to the dishonesty inherent in proceeding to operate on F using an endoscopic technique to which she did not consent and the misleading way in which he approached the modification of clinical records after he knew that patients had lodged a complaint against him. I also regard the fact that Mr Edwards caused significant harm to three of the complainants as being particularly serious. Allied to this is the fact that he appears to show no remorse or contrition for his actions. Rather, he continues to dispute virtually every aspect of the case against him.
[375] As the Tribunal noted, this is not a case in which Mr Edwards can expect an approach that emphasises his rehabilitation. He does not advance the appeal on the basis that he requires rehabilitation. Furthermore, when the Board permitted him to undertake podiatric surgery under supervision he promptly breached the condition by operating on four patients without supervision. This demonstrates that suspension is not an appropriate remedy because it will permit Mr Edwards to continue to practise surgery without undertaking any form of rehabilitation. He would do so in circumstances where he has demonstrated that he cannot be trusted to abide by conditions that might be imposed to protect the public.
[376] I am therefore satisfied the only realistic option available to the Tribunal was to cancel Mr Edwards’ registration as a podiatric surgeon. An order censuring Mr Edwards to denounce his conduct was also appropriate in the circumstances.
[377] However, it does not necessarily follow that the Tribunal should also have cancelled Mr Edwards’ registration as a podiatrist. This is an issue on which I will need to hear further from counsel. I also need to hear from counsel as to whether the
41 Patel v Complaints Assessment Committee HC Auckland CIV 2007-404-1818, 10 August 2007 at [26].
order for costs that the Tribunal made should be reduced in light of the fact that I have determined it was not entitled to find several of the particulars established.
[378] The Registrar is to arrange a telephone conference with counsel during the week commencing 5 December 2022 so that directions can be made as to how these issues should be addressed.
Lang J
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