Patel v Complaints Assessment Committee HC Auckland CIV 2007-404-1818
[2007] NZHC 1921
•27 June 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-1818
BETWEEN SURESH KANJI PATEL Appellant
AND COMPLAINTS ASSESSMENT COMMITTEE
Respondent
Hearing: 21 June 2007
Appearances: A A H Waalkens QC and A L Credin for Appellant
J C Hughson for Respondent
Judgment: 27 June 2007 at 4:30pm
JUDGMENT OF ANDREWS J
This judgment was delivered by Justice Andrews on
27 June 2007 at 4:30pm
pursuant to r 540(4) of the High Court Rules.
…………………………… Registrar/Deputy Registrar
Date: …………………………
Counsel:
A H Waalkens QC, PO Box 4338, Shortland St, Auckland (Fax 358-3744)
J C Hughson, PO Box 10450, Wellington (Fax 04 499-3583)
S K PATEL V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2007-404-1818 27 June 2007
Introduction
[1] On 14 February 2007 the Dentists Disciplinary Tribunal (“the Tribunal”) made an order that the name of Dr S K Patel be removed from the Dental Register as from 1 July 2007 (“the Removal Order”). Dr Patel has applied for a stay of the removal order, pending his appeal against it.
Background
[2] Dr Patel admitted charges brought against him under s 54(1)(b) and (c) of the Dental Act 1988, following complaints made by three patients. The charges related to failure to keep adequate dental records, misrepresentations, failure to obtain informed consent, failure to provide adequate or proper clinical care, failure to refer a patient for care outside the limits of his practice, and breaches of undertakings given to the Dental Council.
[3] The hearing before the Tribunal proceeded on an agreed summary of facts, and Dr Patel’s admission that the admitted conduct cumulatively amounted to professional misconduct. The Tribunal found that the admitted charges, separately and cumulatively, amounted to professional misconduct. The Tribunal’s orders (omitting references to the Dental Act) were as follows:
1. Dr Patel is found guilty of professional misconduct.
2. Dr Patel will be removed from the Dental Register, commencing 1
July 2007.
3.Dr Patel may apply to have his name restored to the register after a period of two years i.e. from 1 July 2009.
4. Dr Patel is censured.
6.[sic] Dr Patel is ordered to pay 20% of the costs of the hearing and prosecution.
[4] On 11 April 2007 Dr Patel filed an appeal against the removal order. Accompanying the Notice of Appeal was an application for stay of the removal order, pending determination of the appeal.
[5] The grounds on which stay is sought may be summarised as
a) The decision to remove Dr Patel’s name from the Dental Register was wrong, and harsh and unreasonable.
b) Unless a stay is granted, Dr Patel’s appeal rights will be rendered nugatory.
c) Existing conditions on Dr Patel’s practise are sufficient to protect the public pending determination of the appeal.
[6] The application for stay is opposed by the respondent, the Complaints Assessment Committee (“CAC”), which brought the charges against Dr Patel. Essentially, the CAC’s opposition was on the ground that Dr Patel’s previous record of clinical incompetence and dishonesty gave rise to factors of public interest and protection of the public that far outweighed any of Dr Patel’s personal interests.
Relevant statutory provisions
[7] Section 64(5) of the Dental Act provides:
64 Appeals from Decisions of Council, Board and Tribunals
…
(5) Subject to any Order of the Court, every decision, direction or Order of the Council or the Board or a Tribunal against which an appeal is lodged shall continue in force and have effect pending the determination of the Appeal.
[8] Rule 710 of the High Court Rules provides:
710 Stay of proceedings
(1) An appeal does not operate as a stay of the proceedings appealed against or is a stay of execution of judgment or order appealed against.
(2) However, pending determination of an appeal, the decision-maker or the Court may, on application, -
(a) Order a stay of proceedings in relation to the decision appealed against … ;
(b) Grant any interim relief.
…
[9] The starting point is, therefore, that notwithstanding the filing of an appeal, the removal order is effective unless a stay is granted. The onus is on the applicant to establish the grounds for a stay.
Factors to be considered
[10] The Court has a broad discretion whether to grant a stay. As noted by Priestley J in his judgment on a previous application by Dr Patel for a stay pending appeal, the exercise of the discretion, in the context of the Dental Act, will require balancing factors such as public safety, professional competence, hardship to the applicant in the event of a stay being declined, the likely length of time to the appeal hearing and, to some extent, the gravity of the charges against the applicant and
whether there is an arguable case on appeal.1
Public safety and professional competence
[11] Since about October 2002 Dr Patel has had conditions imposed on his practice of dentistry. The conditions have included restrictions on the type of dental treatment he may carry out, and a requirement that he practise under supervision.
[12] As at the time of the Tribunal hearing, Dr Patel was subject to a condition that he not perform crown or bridge work, and that he not engage in sole practice. He was also required to record in a log book all details of endodontic cases (name of
1 Suresh Patel v The Dentists Disciplinary Tribunal HC AK AP77-SW02, 21 August 2002 at [7]
patient, reference number, tooth involved, date of completion of treatment), with the log book to be reviewed by the Dentist Board (“the Board”) of the Dental Council.
[13] In May 2007 the Board considered Dr Patel’s application for an Annual Practising Certificate pending his removal from the Register on 1 July 2007 (or any decision to stay the removal order). The Board considered that it was necessary, in order that it could be said that Dr Patel met the required standard of clinical competence, and the public was protected, that further conditions be imposed. These were that Dr Patel:
a) Practise subject to supervision by a supervisor appointed by the
Board.
b) Comply with a supervision protocol.
c) Display his Annual Practising Certificate in a prominent position within his practice, so as to inform the public of the conditions under which he practised.
[14] The Board further noted that should Dr Patel’s application for stay of the removal order be successful, it would reconsider the issue of any further practising certificate, for the period after 1 July 2007.
[15] Mr Waalkens submitted that the grant of a stay would not have any adverse implications for public safety. This was, he submitted, because the conditions under which Dr Patel has been permitted to practise since the Tribunal hearing provides sufficient protection for the public.
[16] In response, Ms Hughson submitted that Dr Patel is not a fit and proper person to be practising dentistry in New Zealand, under any conditions, pending determination of his appeal. Ms Hughson referred, in particular, to evidence of a recent instance of dishonesty on the part of Dr Patel. In February 2007 Dr Patel pretended to be an ACC investigator in order to access records relating to one of the complainants. Ms Hughson submitted that this serious matter (which was not taken
into account by the Board in May 2007) lent further weight to the Tribunal’s decision to make the removal order.
[17] I accept that the new allegation of dishonesty may be taken into account by the Board in respect of future applications for practising certificates. However, it would appear that, at least in respect of the period to 1 July 2007, the Board considered that questions of clinical competence and public safety were adequately addressed by the conditions imposed on Dr Patel’s practice.
Gravity of the offending
[18] The offending admitted by Dr Patel arose out of his treatment of three patients, during the period from 1998 to 2002. The charges related to incompetent professional treatment in the area of crown and bridgework, and more general matters including informed consent and record keeping.
[19] The offending also included dishonesty: falsely representing his qualifications, experience and ability to undertake particular treatment, concealing the fracture of a tooth, and misrepresenting to a patient that a crown fitted adequately. It also included Dr Patel’s failing to tell a patient that as a result of an undertaking given to the High Court, he could not complete a particular course of treatment for one of the complainants.
[20] I accept Ms Hughson’s submission that the offending was serious, and that it went well beyond clinical competence.
Hardship to the applicant
[21] Mr Waalkens submitted that De Patel would suffer serious hardship if he is required to close his practice as from 1 July 2007. Once having closed his practice, he submitted, Dr Patel would be unable to recommence even if he were able to do so as a result of his appeal succeeding. Ms Hughson submitted that Dr Patel’s personal circumstances did not outweigh the significant public interest in a stay being refused. She pointed out that Dr Patel has had since March 2007 to prepare for the eventuality
of his removal from the Register as from 1 July 2007. One of the reasons the period to 1 July was sought was to give Dr Patel time to put his affairs in order. Ms Hughson further submitted that the financial circumstances disclosed by Dr Patel do not suggest that he would in fact suffer personal financial hardship that would be significant enough to justify a stay in all the circumstances.
[22] I accept that Dr Patel is likely to suffer hardship if he is required to close his practise on the 1st July 2007, but eventually succeeds on appeal. However, that is one factor to be taken into account, together with the other factors considered.
Likely time until hearing
[23] At the commencement of the hearing both counsel submitted that a hearing date was unlikely to be allocated prior to either late 2007 or early in 2008. However, during the course of the hearing counsel made further inquiries with the Registry. As a result of those inquiries, I was advised that time is available for Dr Patel’s appeal to be heard on 9 August 2007. In a Minute issued on 22 June 2007 I directed that the appeal be set down for hearing on that day, and set a timetable for submissions to be filed prior to the hearing.
Merits of the appeal
[24] Both counsel addressed me as to the significance of the merits of an appeal as a factor to be taken into account in considering an application for say. In my view, it would only be if it could be said that Dr Patel’s appeal had no chance of success that this would be a factor to be considered in respect of an application for stay.
Balancing the factors
[25] I accept that Dr Patel’s offending is properly characterised as serious. Further, it is evident that he has an unenviable history of previous disciplinary convictions. However, he has filed an appeal, and the appeal can now be heard within a reasonably short period of time – that is, on 9 August 2007. While it would be improper of me to speculate on the outcome of the appeal, I could not say, having
had Mr Waalkens’ outline of the matters to be raised on appeal, that it was entirely without merit. Further, Dr Patel has been permitted to continue practising dentistry since the Tribunal hearing, on conditions that the Board consider to be sufficient.
[26] Balancing all of the factors, I am of the view that the application for stay pending the appeal hearing should be granted. For the period up to 30 June 2007 the conditions on which Dr Patel may continue to practise are as set out by the Board in its letter of 23 May 2007. For the period from 1 July 2007 until the hearing of Dr Patel’s appeal, the conditions on which he may continue to practise dentistry should be set by the Board. I would anticipate that they would comprise, at least, those contained in the Board’s letter of 23 May 2007.
Decision
[27] Dr Patel’s application for stay is granted and he may continue to practise dentistry pending the hearing of his appeal, subject to conditions on his practice as set out above.
[28] Mr Waalkens sought that costs be reserved, awaiting the determination of Dr Patel’s appeal. Ms Hughson asks that costs should be determined. In this case, I am satisfied that costs should be reserved pending determination of the appeal.
Andrews J
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