Subramani v A Professional Conduct Committee appointed by the Dental Council of New Zealand

[2022] NZHC 3619

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2022-418-17

[2022] NZHC 3619

UNDER

the Health Practitioners Competence Assurance Act 2003

IN THE MATTER OF

an appeal against a decision of the Health Practitioners Disciplinary Tribunal dated 16 December 2022

BETWEEN

BHARATH RAJA SUBRAMANI

Appellant

AND

A PROFESSIONAL CONDUCT

COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND

Respondent

Hearing:	22 December 2022 (by way of telephone conference)
Appearances:	H Waalkens KC for Appellant A Lane for Respondent
Judgment:	23 December 2022

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 23 February 2022 at 12 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND [2022] NZHC 3619 [23 December 2022]

[1]    By a decision of the Health Practitioners Disciplinary Tribunal (the Tribunal) delivered on 16 December 2022 (the decision reserved following a hearing on 1 to   4 February 2022), the Tribunal, having found a charge of professional misconduct on the part of Dr Bharath Subramani (a registered dentist) was established, imposed penalties, including that his registration be cancelled under s 101(1)(a) Health Practitioners Competence Assurance Act 2003, effective six weeks from the date of the decision. As the decision was dated 16 December 2022, the effective date of cancellation is 27 January 2023. The Tribunal explained (at [653]) that were it not for the fact the decision was being issued shortly before Christmas, it would have allowed 28 days in which Dr Subramani would be allowed time to organise his practice (that is, instead of the 42 days it identified).

The appeal

[2]    Dr Subramani appeals the decision both in relation to cancellation and the other aspects of the decision.

[3]    Mr Waalkens KC has filed the appeal urgently because of this Court’s legal vacation and because of the matters of interim relief that arise.

Interim relief

[4]    Dr Subramani applies without notice for a stay of the Tribunal’s decision. The application has proceeded today on a without notice basis but adopting the Pickwick procedure. Ms Lane, for the Tribunal, was accordingly heard during this brief hearing (by telephone conference).

[5]    Dr Subramani’s application is supported by his own affidavit and an affidavit of a Christchurch dental practitioner, Dr Michael Shand.

[6]It is Dr Shand’s role which is most relevant to the application before the Court.

[7]    At a time when Dr Subramani had experienced the significant issues in his practice that had led to disciplinary charges, Dr Shand became the Dental Council appointed supervisor of Dr Subramani (commencing September 2020). Through the

period of his supervision Dr Subramani’s practice has been limited to what has been referred  to  as  “basic  dentistry”,  with  Dr  Shand  giving  prior  approval  to  all   Dr Subramani’s intended treatment plans for any dental work he undertakes. Dr Shand provided a reference for Dr Subramani in the context of the Tribunal’s hearing at the start of this year. He also gave oral evidence at the hearing on 2 February 2022. His evidence was supportive of Dr Subramani’s ability to practice safely. In his affidavit filed in this proceeding he has proposed that:

... as I have observed firsthand since I was appointed as his supervisor back in September 2020, [Dr Subramani] is performing safely and appropriately within the limited scope of his dental practice. Indeed, I have commended to the Dental Council that the restriction on his ability to practice only basic dentistry should itself be lifted — such is my confidence of how he is performing.

[8]    I am advised that since the hearing in February 2022 Dr Subramani has continued to practice throughout the year under Dr Shand’s supervision. There has been no suggestion of any fresh complaint arising in relation Dr Subramani’s professional conduct in that period.

The procedural difficulty

[9]    The timing of the release of the Tribunal’s decision has created a procedural difficulty. The normal expectation for an appellant in relation to such a decision would be that the appellant’s solicitors would have the opportunity before a decision took effect to have this Court hear on-notice an application for a stay. That will not be possible before 27 January 2023.

[10]   Having regard to that situation, I identified in the course of the hearing a practical solution which I put to counsel. The solution is to impose a stay which would have the effect of postponing for the time being the effective date of Dr Subramani’s cancelled registration from 27 January 2023 to 17 February 2023. Within that period the application for a stay would be brought on for hearing on an on-notice basis.

[11]   At that point, Ms Lane indicated that there was a difficulty with that solution. She explained that Dr Shand, who was at the point of professional retirement, had allowed his practising certificate to lapse in October 2022, whereupon the Dental

Council had notified him that it was nonetheless prepared to have him continue in his supervisory role until the Tribunal’s determination.

[12]   Given the fundamental distinction in roles between the Dental Council and the Disciplinary Tribunal, Ms Lane (appearing for the Tribunal) suggested that a stay ought not be ordered given that Dr Shand may not be permitted by the Dental Council to continue to provide a supervisory role.

[13]   In the urgent context of today’s hearing, I am left in substantial uncertainty as to what exactly are the arrangements between the Dental Council and Dr Shand. I understood Ms Lane at one point to indicate that Dr Shand had been assured that he would be able to continue in his supervisory role until the outcome of the Tribunal’s hearing was known. It might be anticipated that the Dental Council, if aware of the circumstances of the timing in which the Tribunal delivered its decision, might continue to take a flexible approach to Dr Shand’s supervisory role. In any event, that situation can be protected by a reservation of leave to the parties to return to the Court if necessary.

[14]   I add for completeness that I was referred also to a letter written by Ms Lane’s firm to Mr Waalkens dated 21 December 2022 in which it is stated that Dr Shand’s period of supervision will “shortly come to an end” and that he “cannot continue after [27 January 2023]”. As I have not been given any original document identifying that date as a defined cut-off date on the part of the Dental Council, I consider it appropriate to deal with this area of uncertainty by reservation of leave to the parties.

Stay of proceedings — the law

[15]This application for a stay is brought under r 20.10 High Court Rules 2016.

[16]   Dr Subramani’s appeal does not stay enforcement of the decision of the Tribunal. Rule 20.10(2) however empowers this Court to stay enforcement of the decision and to grant any interim relief.

[17]   It is the interests of justice which should chiefly guide the exercise of discretion under r 20.10.1 That said, I recognise in relation to matters of professional discipline the importance also of not disregarding the findings of fact of the Tribunal whose decision is under appeal. In this case the Tribunal has found that Dr Subramani is operating at the level of a junior dental student.2

[18]   However, what is sought by this present application is effectively what is effectively a three-week extension of the period before which Dr Subramani’s deregistration becomes effective. On the information available I am not able to regard that brief period, coming so long after Dr Shand began his supervision (which the evidence suggests has been satisfactory) as creating a meaningful risk to the public or more broadly to the professional reputation of dentists.

Outcome

[19]   I am satisfied that this is an appropriate case in which to stay execution of the decision.   The primary focus of  the hearing has  been on the  decision to  cancel   Dr Subramani’s registration. Given however that the appeal will cover all aspects of penalty, it is appropriate that those other aspects also be the subject of the interim order.

Orders

[20]I order:

(a)by way of interim relief under r 20.10(2)(c) High Court Rules 2016 the date on which Dr Subramani’s registration will be cancelled (unless earlier order is made) will be 17 February 2023;

(b)the decision of  the  Tribunal  dated  16 December  2022,  whereby  Dr Subramani was censured and fined $10,000 and ordered to pay

$150,000 in costs, is stayed until further order of the Court;

1      See Baker v Lawrence [2022] NZHC 2734 at [3].

2      Professional Conduct Committee appointed by the Dental Council of New Zealand v Subramani

HPDT 1282/Den21/511P, 16 December 2022 at [617].

(c)leave is reserved to the parties to apply on three working days’ notice;

(d)the plaintiff is promptly to file an on-notice application for stay of the Tribunal’s decision, with that application to be given on its filing a firm hearing date at 10 am on 7 February 2023 (one and a half hours reserved) (Osborne J); and

(e)the costs of the without notice application are reserved.

Solicitors:

Claro Law