Moveme Health Limited v New Zealand Artificial Limb Service
[2022] NZHC 839
•27 April 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-514
[2022] NZHC 839
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER OF
an application for judicial review
BETWEEN
MOVEME HEALTH LIMITED
Applicant
AND
NEW ZEALAND ARTIFICIAL LIMB SERVICE
Respondent
Hearing: On the papers [Further submissions received 4 and 11 April 2022] Counsel:
A H Waalkens QC, C M Marks and J W Upson for Applicant M G Colson QC, B A Davies for Respondent
Judgment:
27 April 2022
JUDGMENT (NO 2) OF ISAC J
[Final orders]
Introduction
[1] In my principal judgment,1 I declined MoveMe Health Ltd’s application for declarations circumscribing the scope of the New Zealand Artificial Limb Service’s statutory functions.2
[2] Although I declined to grant the applicant the relief it had sought, in the course of determining the application I made several observations about the scope of the definition of an artificial limb in s 4 of the Artificial Limb Service Act 2018.
1 MoveMe Health Ltd v New Zealand Artificial Limb Service [2022] NZHC 577.
2 At [127]–[128].
MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE (NO 2) [2022] NZHC 839
[27 April 2022]
The statutory definition of an artificial limb includes “a similar device” to an artificial arm, hand, leg, or foot. One of the issues I had to consider was whether an orthosis was a similar device. I concluded:3
… a “similar device” for the purposes of the Artificial Limb Service Act 2018 includes an orthotic device that supports a limb and promotes mobility (whether the limb is missing, partly missing or impaired). I consider that conclusion is sufficient to determine the extent of the Service’s functions.
[3] I called for submissions on the appropriateness of granting a declaration along the lines noted, and the precise form of any such declaration. Submissions were subsequently filed. This judgment addresses whether it is appropriate to grant a declaration and, if so, its precise terms.
MoveMe’s submissions
[4] MoveMe submits that a declaration should be made, but not in the terms proposed in the principal judgment. MoveMe submitted that the terms of the proposed declaration could be supplemented to clarify its application to particular patient groups. The declaration sought was in three parts:
Part A:
A “similar device” for the purposes of para (b) of the definition of “artificial limb” in s 4 of the Artificial Limb Service Act 2018 includes an orthotic device that (i) avoids or reduces a real, in the sense of being appreciable or demonstrable, risk of amputation; or (ii) supports a limb and promotes mobility (whether the limb is missing, partly missing or impaired).
Part B:
An orthotic device that is a similar device but which can also serve functions or purposes not provided for in this declaration is a “similar device” only when used for a purpose or function consistent with this declaration.
Part C:
Services to persons in connection with an orthotic device that is a similar device but which can also serve functions or purposes not provided for in this declaration are only within the functions of the New Zealand Artificial Limb Service under s 8(b) of the Artificial Limb Service Act 2018 if the orthotic device is a “similar device” in terms of this declaration.
3 At [138].
[5] The applicant contends that, contrary to the Court’s findings, the Service’s position is:
(a)that all orthoses are similar devices for the purposes of the Act; and
(b)that the Service is unconstrained in the patient group it provides services to.
[6] It follows that the Services’ contended scope of service provision exceeds its functions under the Act, and its entry into contracts with district health boards for general orthotic services is inconsistent with the Court’s findings.
The Service’s submissions
[7] The respondent’s primary submission was that no declaration should be made. The proposed declaration, and those suggested by the parties, might simply lead to further litigation. For instance, what is meant by “mobility” or “functionality”? The Service submits that, when read as a whole, the principal judgment provides clarity on all matters. Second, it is said that the evidence had not been directed to the proposed declaration; rather, it addressed the specific declarations sought by the applicant.
[8] The Service also argued there are grey areas not resolved by the proposed declaration, and these areas of ambiguity reflect the specific evidential and legal context in which the judgment was given. That context included MoveMe’s choice to focus on the narrow proposition that a similar device is one that replaces or augments a missing limb, rather than focus on particular orthoses, or one of the relevant DHB orthotic services contracts.
[9] The Service went on to submit that the proposed declaration might not fully reflect the similarity between orthoses and prostheses highlighted in the expert evidence which I preferred:
This evidence is set out in the paragraphs leading to your Honour’s conclusion that a “wider and more coherent view is that the function of prosthetic limbs is to support and promote mobility”. However, a declaration referring only to promoting mobility may not fully capture all aspects of compensating for or accommodating lost function/ improving functionality.
Mobility (i.e. movement) may not be essential to functionality. Part of a limb may need to be immobilised or supported in order to allow another part to move or function. For example, supporting a weak knee in extension to allow weight bearing to stand to prepare a meal at a bench for someone whose mobility is via a wheelchair.
[10]If a declaration were to be made, an alternative formulation is proposed:
‘Similar device’ for the purposes of the Artificial Limb Service Act 2018 includes an orthotic device that:
• supports a limb and promotes mobility and/or function (whether the limb is missing, partly missing, impaired or compromised); or
• otherwise compensates for or accommodates lost function of the musculoskeletal and/or neurological system.
Decision
[11] I have concluded that it is not appropriate to make a declaration, either in the terms proposed in the principal judgment, or those suggested by either party.
[12] The submissions, and the wide divergence in the terms of the proposed declaration, highlight the difficulty this case presents. It involves the application of an abstract and broad expression — “a similar device” — to a complex clinical and commercial setting. In large part due to concerns about the case specific focus of the argument and evidence, I addressed the meaning of a “similar device” using inclusive rather than exhaustive language at [138] of the principal judgment.
[13] As the Service submits, for a declaration to have utility it should be fact specific, efficacious and capable of practical application.4 Although I accept that the terms of the alternative declaration proposed by the Service, noted at [10] above, fairly reflect my acceptance of its expert evidence, having considered the positions presented by the parties, I have concluded that the principal judgment must speak for itself. A declaration radically at odds with that originally sought by the applicant, and the evidence and submissions filed by the parties, is not appropriate. It would invite further dispute over new questions of interpretation, and would not comprehensively address the scope of the respondent’s functions. It would also create a risk of unfairness, given
4 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [80].
the evidence and submissions filed sought to address the issues as the applicant defined them.
Result
[14]For the foregoing reasons, I decline to make a declaration.
Isac J
Solicitors:
Russell McVeagh, Wellington for Applicant MinterEllisonRuddWatts, Wellington for Respondent
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