Edwards v Podiatrists Board of New Zealand

[2018] NZHC 612

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-202

[2018] NZHC 612

UNDER

the Health Practitioners Competence Assurance Act 2003

IN THE MATTER

of a proposed appeal under s 113 against a decision of the District Court

BETWEEN

STEFAN RANDALL EDWARDS

Applicant

AND

PODIATRISTS BOARD OF NEW ZEALAND

Respondent

Hearing:	On the papers
Counsel:	K Davenport QC for Applicant
Judgment:	6 April 2018

JUDGMENT OF CHURCHMAN J

The application

[1]        By application dated 29 March 2018 the applicant sought an order staying a decision of the Podiatrists Board of New Zealand pending an application for leave to appeal the decision of Hastings DCJ delivered on 20 March 2018.

[2]        Hasting DCJ had dismissed an appeal by the applicant against the decision of the Podiatrists Board of New Zealand to impose interim conditions on his practicing certificate under s 69 of the Health Practitioners Competence Assurance Act 2003 (HPCAA).

EDWARDS v PODIATRISTS BOARD OF NEW ZEALAND [2018] NZHC 612 [6 April 2018]

[3]        The conditions imposed by the respondent were made on an interim basis pending the outcome of investigations then currently under way before a Professional Conduct Committee (PCC) and the Health and Disability Commissioner (HDC).

[4]        An interim stay of the Board’s order had been granted on 20 December 2017 but was lifted when Hastings DCJ dismissed the applicant’s appeal.

[5]        The applicant is registered in the Podiatrist, Podiatric Radiographic Imager, and Podiatric Surgeons Scopes of Practice.

[6]        The respondent, in  its 1 December  2017 decision  imposed  an order  under  s 69(2)(b) of the HPCAA that the applicant:

(a)is only permitted to perform podiatric surgery falling within the podiatric surgeon scope of practice under the supervision of:

(i)a podiatrist registered in the podiatric surgeon scope of practice and holding a practising certificate in that scope; or

(ii)an orthopaedic surgeon holding a current practising certificate; and

(b)is to provide the Board with monthly reports listing each surgery undertaken within the podiatric surgeon scope of practice, the supervisor present, and the anaesthetic administered (and where it was obtained from and who it was administered by).

[7]        In addition to the application for a stay the applicant filed a memorandum of counsel dated 29 March 2018 and two affidavits of applicant both dated 27 March 2018, one in support of an application for leave to appeal and the second in support of an ex parte application for stay.

[8]        A further memorandum of counsel dated 4 April 2018 has been filed. That memorandum recorded the outcome of an application by the applicant to the District Court to suspend the decision of Hastings DCJ for two weeks. Tuohy DCJ dismissed that application on 29 March 2018.

Grounds

[9]The application for a stay is said to be made in reliance on High Court Rules

7.43. That rule simply authorises the Court to make any interlocutory order that is provided for in rules.

[10]      The relevant rule is r 7.46 which relates to the determination of “without notice” applications (as ex parte applications are now called).

[11]      The two grounds specified in [4] of the leave application of 29 March 2018 appear to be drawn from r 7.46(3)(a) (requiring the application to proceed on notice would cause undue delay or prejudice) and r 7.46(3)(e) (that the interests of justice require the application to be determined without serving notice of the application).

[12]      Although the applicant’s affidavit of 27 March 2018 in support of the without notice application for a stay refers to matters such as expert reports of Dr Lee Anne Gray, Dr Robert Hermann and Mr Paul Craig, the principal ground relied on by the applicant for the stay appears to be set out in the last paragraph of his affidavit where he says:

My current financial position is so precarious that my podiatric surgery practice (which is my family’s livelihood) will not survive if the Respondent’s decision is allowed to remain in place pending the hearing of my leave application. Accordingly, I ask the Court to grant my application for an interim stay of the Respondent’s decision pending the outcome of my leave application.

Current factual situation

[13]      At the time, the respondent imposed the conditions on the applicant’s practice that are the subject of this stay application there were some six outstanding complaints made between July 2015 and July 2017. At least one of those (the Hodge complaint) appears to have been subsequently resolved. The others are currently being investigated by a Professional Practice Committee (PPC) or the HDC.

[14]The grounds upon which the conditions were originally imposed is set out in

[16] of the respondent’s decision which said:

While the PCC and HDC investigations are ongoing, the number in similar features of the complaints make it reasonable to conclude there is a concerning pattern of behaviour and that your performance of Podiatric Surgery poses an ongoing risk of serious harm to the public.

[15]The Board followed that statement by saying at [17]:

The Board considers that the series of complaints raises questions about your level of insight into your practice and your clinical judgement and decision- making.

[16]      The applicant exercised his right of appeal against the Board’s decision and in a thorough decision, Hastings DCJ explored the basis for the imposition of conditions under s 69 of the HPCAA and noted that the purpose of the section was:1

… to give the responsible authority the flexibility to manage the risk that the alleged conduct poses to public safety before an investigation or criminal proceeding has been resolved.

[17]      The appeal from the decision of the respondent to the District Court was a full appeal on the merits. Having considered all the arguments Hastings DCJ concluded:2

… I consider that the interim conditions imposed by the Board on Mr Edwards practicing certificate address the risk to public safety raised in the allegations, that they provide the public with confidence that professional standards are being maintained, and that they are reasonable, proportionate and the least restrictive measures that are appropriate in the circumstances.

[18]      The original order imposed conditions based on the assessment of risk to the public in relation to issues such as the applicant’s clinical judgement and decision- making.

[19]      The consequences of making a without notice order would be that the applicant would be entitled to undertake a podiatric surgery practice without any conditions in a situation where the respondent felt that the imposition of conditions was required and the District Court has rejected the applicant’s appeal on the merits in respect of that decision.

[20]      In these circumstances, it is appropriate that the respondent be heard in relation to any further application for a stay.

1      Edwards v Podiatrists Board of New Zealand [2018] NDC 5342 at [25].

2 At [41].

[21]      The Court is likely to receive material assistance from the views of the respondent on the issue of whether there is still a risk to the public in allowing (even on an interim basis) the applicant to practice podiatric surgery without conditions.

[22]      Accordingly, pursuant to High Court Rules 7.46(5) I determine that this application cannot properly be dealt with without notice.

[23]      I direct that the application and all supporting material be served on the respondent.

[24]      I acknowledge that, unless a stay is granted that the applicant will be in a difficult financial situation. Accordingly, it is appropriate that the hearing of the stay application be attended to promptly.

[25]      In order to facilitate that I direct the parties to liaise with the Registrar to schedule this matter for an urgent teleconference to discuss timetabling and progress toward hearing.

Churchman J

Solicitors:

Sellars & Co, Helensville, for Applicant