Edwards v A Professional Conduct Committee
[2022] NZHC 971
•9 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000090
[2022] NZHC 971
BETWEEN STEFAN RANDEL EDWARDS
Applicant
AND
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: On the papers Counsel:
H C Stuart and M McClelland QC for Applicant D La Hood and A Oliver for Respondent
Judgment:
9 May 2022
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 9 May 2022 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Lyon O’Neale Law, Tauranga/M McClelland QC/H C Stuart, Wellington Luke Cunningham Clere/D La Hood/A F Oliver, Wellington
EDWARDS v A PROFESSIONAL CONDUCT COMMITTEE [2022] NZHC 971 [9 May 2022]
Introduction
[1] The applicant, Mr Stefan Edwards, was formerly registered as a podiatrist and podiatric surgeon with the Podiatrists Board of New Zealand (the Board). On 15 December 2021, he was found guilty of professional misconduct under s 100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (the Act). The Health Practitioners Disciplinary Tribunal (the Tribunal) censured him, cancelled his registration as a podiatrist and podiatric surgeon and required him to pay
$195,000 as a contribution towards its costs.1 This decision took effect as from 22 December 2021.
[2] Mr Edwards has appealed the Tribunal’s decision. The appeal has been scheduled for hearing over three days, commencing on Tuesday 25 October 2022.
[3]Pending his appeal, Mr Edwards seeks:
(a)a stay of the Tribunal’s penalty decision, so that he can return to practice as a general podiatrist, but not as a podiatric surgeon; and
(b)name suppression.
[4] The parties have consented to these applications being heard on the papers. Both have filed comprehensive written submissions.
Background
Mr Edwards
[5] Mr Edwards graduated with a Bachelor of Science degree (Honours) majoring in podiatric medicine from the University of Brighton in the United Kingdom in 1993. He was then employed as a podiatrist in the United Kingdom for a period of some two years. He moved to New Zealand in September 1995 and, after passing the New Zealand registration examination, worked briefly as a podiatrist in Auckland. He then set up a podiatry clinic in Mount Maunganui, where he worked for some eight
1 A Professional Conduct Committee appointed by the Podiatrists Board of New Zealand v Edwards
HPDT 1211/Pod20/484P and Pod21/507P, 15 December 2021.
years before relocating his clinic to Tauranga. At one stage he set up a second clinic in Auckland.
[6] While in New Zealand, he obtained a Diploma of Podiatric Surgery from the New Zealand College of Podiatric Surgery. Commencing in 2000, he began a further three years of specialist training in podiatric surgery and he became a fellow of the New Zealand College of Podiatric Surgery in 2011.
The complaints/the Board’s initial response
[7] Between 2013 and 2016, a number of complaints were made against Mr Edwards. They related to his practice as a podiatric surgeon. As a result of these complaints, the Board convened a Professional Conduct Committee (the Committee) to investigate the matters raised.
[8] On 1 December 2017, the Board imposed conditions on Mr Edwards’ practising certificate. These included a condition requiring that Mr Edwards only perform podiatric surgery whilst supervised. This condition was to apply during the course of the Committee’s investigation.
[9] On 1 September 2019, the media outlet “Newshub” aired a television segment on TVNZ regarding some of the complaints made against Mr Edwards. Podiatry New Zealand subsequently published this television segment on its website. The publicity had a significant effect on Mr Edwards’ practice. Numerous appointments were cancelled and he received abusive phone calls from members of the public. Patient numbers dwindled substantially. He lost almost all of his patients, both surgical and general podiatry patients. As a result, Mr Edwards and his partner were placed under financial strain; they have struggled to meet their various ongoing commitments; they had to sell their family home and move into a smaller property.
[10] This was not the end of Mr Edwards’ problems. He breached the supervision condition which had been imposed by the Board. He undertook podiatric surgery on three patients without the required supervision. Moreover, he did not record these unsupervised surgeries in his surgery logs. As a result, on 13 December 2019, he was suspended from practising podiatric surgery on an interim basis. He was only
permitted to carry out treatments that fell within the scope of general or routine podiatry.
The charges/the Tribunal’s decision
[11] On 6 July 2020, the Committee laid a disciplinary charge against Mr Edwards in respect of the complaints that had been made. The charge comprised 59 particulars, alleging professional misconduct in respect of six patients who had received surgical services from Mr Edwards between April 2013 and May 2016. The charge alleged that Mr Edwards, amongst other things, had failed to obtain informed consent from patients, had failed to make an informed diagnosis, had carried out inappropriate surgeries that harmed his patients, had failed to provide appropriate post-operative care, used an unqualified staff member to assist in a surgery and had modified his clinical records.
[12] Mr Edwards denied that his care of the six patients amounted to professional misconduct. He applied for interim name suppression pending the disciplinary hearing. This application was granted by the Tribunal on 29 January 2021.2
[13] Mr Edwards appeared before the Tribunal to defend the charge between 15 and 26 March 2021. The hearing was not completed within the allocated timeframe and it was reconvened for closing addresses to be made on 31 May 2021.
[14] On 1 June 2021, the Tribunal gave an oral indication of its decision. It indicated that it would find 51 of the 59 particulars contained in the charge proved.
[15] The Tribunal reconvened again on 27 and 28 July 2021 so that a further charge against Mr Edwards could be considered. This further charge related primarily to Mr Edwards’ breach of the supervision condition. Mr Edwards admitted that he had acted in breach of the Board’s supervisory order but he argued that his conduct (including continuing to describe himself as a podiatric surgeon on his website) was not sufficiently serious to amount to professional misconduct.
2 A Professional Conduct Committee appointed by the Podiatrists Board of New Zealand v Edwards
HPDT 1128/Pod 20/484P, 29 January 2021 [Decision for interim non-publication order].
[16] On 28 July 2021, the Tribunal gave an oral indication of its decision. It indicated that it would find the second charge proved, and that, in respect of both charges, it would:
(a)censure Mr Edwards;
(b)cancel his registration as a podiatrist; and
(c)order him to pay costs in the total sum of $195,000.
Further orders for name suppression were not sought by Mr Edwards at this stage and the Tribunal recorded that the interim orders for name suppression lapsed as at the date of its decision. The Tribunal directed its Executive Officer to publish its decision and/or a summary of it on the Tribunal’s website and requested the Board to publish either a summary of or a reference to its decision in its professional publications to members, including a reference to the Tribunal’s website, so that interested parties could access the decision.
[17] The Tribunal’s penalty orders did not take effect until 22 December 2021. Mr Edwards continued to provide general podiatry services through until that date. No orders were made by the Tribunal precluding him from doing so.
The stay application
[18] The stay application is brought pursuant to r 20.10 of the High Court Rules 2016. That rule provides as follows:
20.10 Stay of proceedings
(1)An appeal does not operate as a stay—
(a)of the proceedings appealed against; or
(b)of enforcement of any judgment or order appealed against.
(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:
(a)order a stay of proceedings in relation to the decision appealed against:
(b)order a stay of enforcement of any judgment or order appealed against:
(c)grant any interim relief.
(3)An order made or relief granted under subclause (2) may—
(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:
(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.
[19] As can be seen, unless the statute conferring the right of appeal provides otherwise, the bringing of an appeal does not operate to stay the effect of the judgment being appealed. This reflects the general rule in litigation that a party is entitled to enjoy the fruits of a judgment in his or her favour, and that a party seeking a stay must persuade the Court that, if a stay is not granted, the appeal right would be rendered nugatory.3
[20] Rule 20.10 is not dissimilar to r 12 of the Court of Appeal (Civil) Rules 2005. In this context, the Court of Appeal has held that the grant of a stay will generally involve a balancing exercise, taking into account the consequences for all parties to the appeal.4 There are well-established criteria, namely:
(a)whether the appeal may be rendered nugatory if a stay is not granted;
(b)the bona fides of the applicant in the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)any effect on third parties;
(e)the novelty and importance of the questions involved in the appeal;
3 Philip Morris (New Zealand) Ltd v Liggett & Myers Tobacco Co (New Zealand) Ltd [1977] 2 NZLR 41 (CA).
4 Yan v Mainzeal Property and Construction Ltd (in rec, in liq) [2014] NZCA 86, (2014) 22 PRNZ 296 at [25].
(f)the public interest in the proceeding;
(g)the apparent strength of the appeal; and
(h)the overall balance of convenience.
[21] Counsel for both parties accepted that these considerations apply and I turn to consider each of these factors.
Appeal rendered nugatory?
[22] Mr McClelland QC for Mr Edwards highlighted that the appeal hearing is seven months away and that the Court will need time to consider and deliver its decision. He submitted that if a stay is not granted, Mr Edwards will be out of his practice for a considerable period and that he will inevitably lose all of his existing podiatry patients. If successful in his appeal, he will be required to rebuild his patient base from scratch. Mr McClelland further submitted that Mr Edwards has no ability to earn an income in the meantime which has an impact on his ability to fund the appeal and he postulated that, if a stay is not granted, the appeal may not be able to proceed due to financial constraints.
[23] Mr La Hood, for the Committee, submitted that any loss of Mr Edwards’ patient base does not render his appeal nugatory. He argued that, should the Court overturn the Tribunal’s decision, there is no reason why Mr Edwards could not begin practising again. He submitted that a reduction in Mr Edwards’ patient base would not be an unreasonable consequence given the gravity of the Tribunal’s findings. He further noted that no evidence has been provided by Mr Edwards of his financial means or his inability to fund an appeal. He noted that, at the penalty hearing, Mr Edwards admitted under cross-examination that he owned an undervalued commercial property in Tauranga in addition to the family home he then shared with his partner. He argued that, without further evidence, it cannot be assumed that Mr Edwards would be unable to fund the appeal if he were not able to work as a podiatrist for a period of some months.
[24] I am not persuaded on the available evidence that the appeal would be rendered nugatory if a stay is not granted. Mr McClelland’s submissions in this regard are, with respect, speculative. There is no detailed evidence of Mr Edwards’ financial position. While I accept that such practice as Mr Edwards still has as a general podiatrist will be affected if a stay is not granted, on Mr Edwards’ own affidavit, throughout 2020 and 2021, he was only seeing around seven to 10 patients per week, rather than the 16 patients a day which he asserts most practices generally see. There is nothing to suggest that his podiatry practice built up prior to the Tribunal’s decision coming into effect. Nor is there any evidence as to what has happened to his practice in the five months since the Tribunal’s decision. Presumably, Mr Edwards has lost such clients as he previously had.
[25]In my view, this factor counts against a stay.
Bona fides of applicant
[26] Mr McClelland submitted that Mr Edwards has every intention of pursuing his appeal. Mr La Hood properly accepted that there is no evidence to suggest that Mr Edwards is pursuing the appeal in bad faith.
[27] I accept that Mr Edwards is acting bona fide. He has filed a detailed notice of appeal; the matter has been scheduled for a hearing; he has paid the required scheduling fee and security for costs. This factor favours a stay.
Whether the successful party will be injuriously affected by a stay
[28] Mr McClelland submitted that the Committee, as the successful party, will not itself be affected by any stay granted. However, he accepted that in a case like this, the question is rather whether a stay would have an impact on the health and safety of members of the public. He noted that if granted, the stay would put Mr Edwards back in the position he was in from December 2019 until December 2021 – able to practise general podiatry but not podiatric surgery. He argued that the issues before the Tribunal concerned only Mr Edwards’ performance as a podiatric surgeon and his compliance with the supervision condition, and that there is nothing to suggest that there is any risk of harm to the public if Mr Edwards is permitted to continue practising
routine podiatry. Mr McClelland argued that this view is supported by the fact that Mr Edwards practised routine podiatry through until December 2021, without complaint from any member of the public.
[29] Mr La Hood accepted that it is appropriate to assess the impact of the proposed stay on the health and safety of members of the public, but submitted that it is also important to assess the impact of any stay on public confidence in the podiatry profession and its disciplinary processes. He argued that the Tribunal’s findings of serious professional misconduct clearly require that Mr Edwards be prevented from practising (unless its decision is overturned on appeal). He observed that the Tribunal’s findings relate not only to the performance by Mr Edwards of podiatric surgery, but also to his failure to obtain informed consent and maintain adequate notes, his modification of notes in a misleading manner, the making of inappropriate comments to patients, and his failure to comply with conditions imposed on his practising certificate designed to protect the public. He argued that the Tribunal’s findings related not only to Mr Edwards’ practice of podiatric surgery but also his practice as a podiatrist more generally. He submitted that Mr Edwards presents a significant risk to the public if he is permitted to continue to practise podiatry, and that it would undermine public confidence in the podiatry profession were he allowed to continue practising in light of the findings made.
[30] In my judgment, Mr La Hood’s submissions place rather too much emphasis on the Tribunal’s decision. The decision is challenged on appeal and Mr Edwards does not accept that the Tribunal’s findings are reasonable or soundly based. I cannot, in the course of dealing with Mr Edwards’ application, deal with this issue. Suffice it to say that the hearing before the Tribunal was concerned primarily with matters relating to Mr Edwards’ practice as a podiatric surgeon. The various criticisms made of Mr Edwards’ practice as a podiatric surgeon do not seem to relate – at least directly – to his practice as a general podiatrist. Further, there were no complaints about Mr Edwards’ conduct as a general podiatrist over the period 2020 to 2021. The Tribunal did not put in place any restrictions on Mr Edwards’ general podiatry practice between July 2021 and December 2021, notwithstanding that it was open to it to do
so.5 This suggests that the Tribunal did not consider that Mr Edwards’ ongoing practice as a general podiatrist posed any great risk to the public.
[31] In my judgment, there is little to suggest that granting a stay in the terms sought would be likely to have any impact on the health and safety of members of the public. This favours the grant of a stay.
Effect on third parties
[32] Mr McClelland noted that Mr Edwards’ partner was formerly employed by Mr Edwards’ practice and she was dependant on its continuing operation to earn an income. Mr La Hood submitted it is unclear why Mr Edwards’ partner has not sought alternative employment since the Tribunal’s decision came into effect.
[33] I accept that Mr Edwards’ partner will be affected if a stay is not granted. However, there is no evidence to suggest that she has made any attempt to find alternative employment. Given the current employment situation where employment opportunities are relatively readily available, it seems to me that the effect on Mr Edwards’ partner is of limited significance. This factor is neutral.
Novelty of questions involved and public interest in the proceeding
[34]Both counsel accepted that the appeal does not raise any novel issues.
[35] While Mr McClelland submitted there is unlikely to be any elevated public interest in the proceeding, Mr La Hood contended that there is inherent public interest in disciplinary proceedings generally given their public protection purpose. He further noted that there has already been specific public interest in the proceeding against Mr Edwards and that Mr Edwards has been the subject of two news articles.
[36] I agree with counsel that there is nothing novel in the appeal. I accept that there is an inherent public interest in disciplinary proceedings of this nature and that there has been specific interest in the proceeding against Mr Edwards. This factor counts against a stay, but not strongly so.
5 Health Practitioners Competence Assurance Act 2003, s 93.
Apparent strength of the appeal
[37] Mr McClelland submitted that Mr Edwards’ appeal grounds are strong. He identified various examples of the issues raised on appeal, to which Mr La Hood responded.
[38] I decline to enter into any detailed discussion of this issue. The appeal will fall to be considered as a general appeal. Mr Edwards will have to persuade the Court that the Tribunal’s findings were wrong. It is likely that the Court will take into account the advantages the Tribunal had in assessing the oral evidence, as well as the Tribunal’s specialist expertise. For present purposes, it suffices for me to record my view that it cannot be said that the appeal has no prospects of success; nor can it be said that the Tribunal’s decision is obviously fundamentally flawed or that it is riddled with egregious errors. There is the possibility that even if some of the grounds of appeal have merit, it may be found that they relate to isolated aspects of the Tribunal’s decision and that they do not provide a basis for concluding that the Tribunal’s overall finding of serious professional misconduct was in error.
[39]In my view, this factor is neutral.
Overall balance of convenience
[40] Mr McClelland submitted that the overall balance of convenience favours a stay being granted. He argued there is little if any risk to the public if Mr Edwards is permitted to return to routine podiatry. As against this, Mr Edwards and his partner will suffer hardship over an extended period of time if the stay is not granted.
[41] Mr La Hood submitted that the overall balance of convenience falls in favour of declining a stay. He argued that there is a significant risk to the public safety and public confidence in the profession if Mr Edwards is permitted to practise even general podiatry. While he accepted that Mr Edwards will suffer some hardship from being unable to work as a general podiatrist pending the hearing of the appeal, he argued that this is a natural consequence of the gravity and breadth of the Tribunal’s findings and that it is appropriate in the circumstances.
[42] In my judgment, the overall balance of convenience falls, by a fine margin, in favour of Mr Edwards. While there is nothing to support his argument that the appeal would be rendered nugatory if a stay were not granted, the bona fides of his appeal are not in issue. There is little if anything direct to suggest that there is any significant risk to public safety if a stay is granted and Mr Edwards is permitted to continue carrying out general and routine podiatry services pending the hearing of the appeal. While it is arguable that public confidence in the podiatry profession could be impacted, there is no direct evidence to support this assertion and it seems to me a matter which more properly falls for consideration when considering whether or not there should be interim suppression of Mr Edwards’ name. I turn to this shortly.
Result – stay application
[43] Accordingly, I stay the decision of the Tribunal dated 15 December 2021 insofar as it relates to Mr Edwards’ practice as a general or routine podiatrist. As a result, Mr Edwards can return to providing routine podiatry services pending the hearing and determination of his appeal. He may not conduct podiatric surgery.
The name suppression application
Relevant legal principles
[44]Section 95 of the Act provides as follows:
95 Hearings to be public unless Tribunal orders otherwise
(1)Every hearing of the Tribunal must be held in public unless the Tribunal orders otherwise under this section or unless section 97 applies.
(2)If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may (on application by any of the parties or on its own initiative) make any 1 or more of the following orders:
(a)an order that the whole or any part of a hearing must be held in private:
(b)an order prohibiting the publication of any report or account of any part of a hearing, whether held in public or in private:
(c)an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at a hearing:
(d)an order prohibiting the publication of the name, or any particulars of the affairs, of any person.
…
[45]Further, s 112 provides:
112 Orders as to publication of names or particulars
(1)On any appeal under this Part, the appropriate court may, if, in its opinion, it is proper to do so, prohibit the publication of the name or particulars of the affairs of a health practitioner or any other person.
(2)In deciding whether to make an order under subsection (1), the court must have regard to—
(a)the interests of any person (including, without limitation, the privacy of any complainant); and
(b)the public interest.
[46] The statutory provisions are worded slightly differently, although they involve a similar balancing exercise.6
Interim suppression
[47] Here, and as noted, the Tribunal in an interlocutory decision made an interim order for non-publication of Mr Edwards’ name, his practice, the location of his practice and any identifying details. When the Tribunal released its substantive decision on 15 December 2021, Mr Edwards did not seek ongoing suppression and the Tribunal noted that the interim order for non-publication of Mr Edwards’ name and identifying details had lapsed. It directed its Executive Officer to publish the decision under s 157 of the Act.
[48] Mr McClelland submitted that it is desirable that further interim suppression orders be granted, for the following reasons:
6 See L v Director of Proceedings HC Auckland CIV-2008-404-2268, 25 March 2009 at [74]–[78].
(a)Mr Edwards was granted name suppression pending his disciplinary hearing on the basis that publication would cause irreparable harm to his ability to continue practising podiatry. Prior publication in September 2019 had already decimated Mr Edwards’ practice and he had worked hard to re-establish himself as a general podiatrist.
(b)In granting interim suppression, the Tribunal had regard to the fact that the public interest concerns had already been addressed by the imposition of conditions on Mr Edwards’ practising certificate preventing him from practising podiatric surgery.7 Mr Edwards was, at the time, able to practise as a general podiatrist.
(c)Publication of Mr Edwards’ name and identifying details now would run the risk of causing irreparable harm to his professional reputation and his ability to retain a patient base, especially in light of the Tribunal’s adverse findings.
(d)If interim orders are not granted, this will render Mr Edwards’ ability to seek permanent orders at the conclusion of his appeal hearing nugatory.
[49] Mr La Hood noted that permanent name suppression was not sought at the Tribunal’s consideration of penalty. He submitted that:
(a)any reputational damage to Mr Edwards’ practice is the expected consequence of the Tribunal’s findings of professional misconduct. Should the appeal be successful, any reputational damage will be corrected by publication of the High Court’s findings;
(b)granting name suppression would risk impugning other practitioners, because members of the public might erroneously assume that another practising podiatric surgeon is the individual named in the Tribunal’s
7 Decision for interim non-publication order, above n 2, at [21].
decision. There are a very small number of podiatric surgeons in New Zealand;
(c)where professional misconduct is established, there is a high public interest in transparency and accountability of the disciplinary process. This is an important part of maintaining public confidence in the profession.8
Analysis
[50] In my judgment, it is appropriate to decline Mr Edwards’ application for name suppression. I have reached this conclusion for the following reasons.
(a)First, I accept Mr La Hood’s submission that where (as here) professional misconduct has been found, there is a high public interest in transparency and the accountability of health practitioners to the disciplinary process.
(b)Secondly, disciplinary proceedings carry a presumption of open reporting. So do ensuing appeals. Unless there are cogent reasons for suppression, the public are entitled to know what has transpired to date.9
(c)Thirdly, Mr Edwards has not put forward any cogent reasons for suppression. He has already been identified in television programmes. His name has been in the public domain since 2019 and the Tribunal’s decision has been in the public domain, without objection by Mr Edwards, since December 2021. No reasons, other than generic reasons, have been identified for interim suppression. There is nothing peculiar to Mr Edwards’ circumstances which requires suppression. Indeed the circumstances point to the opposite conclusion. I have granted a stay, the effect of which will be to permit Mr Edwards to
8 See Lagolago v Wellington Standards Committee 2 [2018] NZCA 406 at [19].
9 Emmerson v A Professional Conduct Committee appointed by the Medical Council of New Zealand [2017] NZHC 2887 at [7].
continue offering services as a general podiatrist. Members of the public are entitled to have relevant information in the public domain which might help them make an informed decision as to whether or not they wish to engage Mr Edwards’ services.
[51] I decline Mr Edwards’ application for interim name suppression pending the hearing of his appeal.
Costs
[52] Each party has had a measure of success. Mr Edwards has succeeded in his application for a stay but has failed in his application for interim name suppression. It is my preliminary view that costs should lie where they fall.
[53]If the parties disagree, I direct as follows:
(a)Mr Edwards is to file any application seeking costs and/or disbursements within 10 working days of the date of release of this judgment;
(b)any response/application for costs from the Committee is to be filed within a further 10 working days;
(c)any response from Mr Edwards to any application the Committee may make for costs is to be filed within a further 10 working days;
(d)memoranda seeking costs are not to exceed five pages. Memoranda in response are not to exceed three pages.
I will then deal with any application(s) for costs on the papers, unless I require the assistance of counsel.
Wylie J
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