Edwards v A Professional Conduct Committee [2023] NZHC 148 (9 February 2023)

Last Updated: 27 February 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-90 [2023] NZHC 148

BETWEEN	STEFAN RANDAL EDWARDS Appellant
AND	A PROFESSIONAL CONDUCT COMMITTEE Respondent

Hearing:	On the papers
Appearances:	M McClelland KC and H C Stuart for Appellant D La Hood for Respondent
Judgment:	9 February 2023

JUDGMENT OF LANG J

[on penalty and costs]

This judgment was delivered by me on 9 February 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

Solicitors:

Lyon O’Neill Law, Tauranga / M McClelland KC, Wellington H C Stuart, Wellington

Luke Cunningham Clere / D La Hood, Wellington

EDWARDS v A PROFESSIONAL CONDUCT COMMITTEE [2023] NZHC 148 [9 February 2023]

[1] On 1 December 2022 I delivered a judgment in which I held that the Health Practitioners Tribunal (the Tribunal) was entitled to find that the Professional Conduct Committee (PCC) had established two charges alleging professional misconduct by Mr Edwards.¹ It is now necessary for me to deal with two final issues. The first relates to penalty and, in particular, whether Mr Edwards should continue to be prevented from practising all forms of podiatry.

[2] The second issue is whether the costs award made by the Tribunal should be reduced to reflect the fact that I found the PCC had not established several of the particulars on which it relied in relation to the first charge.

Cancellation of Mr Edwards’ registration as a podiatrist

[3] Section 101 of the Health Practitioners Competence Assurance Act 2003 (the Act) relevantly provides):

101 Penalties

• (1) In any case to which section 100 applies, the Tribunal may—

(a) order that the registration of the health practitioner be cancelled:

(b) order that the registration of the health practitioner be suspended for a period not exceeding 3 years:

(c) order that the health practitioner may, after commencing practice following the date of the order, for a period not exceeding 3 years, practise his or her profession only in accordance with any conditions as to employment, supervision, or otherwise that are specified in the order:

...

[4] The appeal did not result in this Court overturning the Tribunal’s conclusions in relation to the most serious allegations that Mr Edwards faced. These related to Mr Edwards undertaking endoscopic surgery on complainant F when she had expressly told him she did not consent to this. His surgery also caused significant harm to four of the six complainants. That is a particularly serious outcome. I am

¹ Edwards v A Professional Misconduct Committee [2022] NZHC 3189.

therefore satisfied that the particulars that were ultimately established on the first charge are sufficiently serious that Mr Edwards should not be permitted to continue to work in the field of podiatric surgery. The only issue for present purposes is whether he should be permitted to return to his former occupation as a podiatrist.

[5] Mr Edwards’ registration as a health practitioner was as a podiatrist and not as a podiatric surgeon. Counsel agree it is not possible to cancel Mr Edwards’ registration as a podiatric surgeon whilst allowing him to retain the ability to practise as a podiatrist. The only means by which this can be achieved is to reinstate his registration but restrict the scope of the field in which he is permitted to practise. The restriction would permit him only to work as a podiatrist and not as a podiatric surgeon.

[6] The PCC contends that the shortcomings revealed by the disciplinary process mean that Mr Edwards is unsuited to return to work in any field of podiatry. However, I consider it relevant that all the particulars in both charges related to Mr Edwards’ activities as a podiatric surgeon. Furthermore, he has no disciplinary history in his capacity as a podiatrist.

[7] Some of the misconduct that has been found to be established obviously calls into question Mr Edwards’ general fitness to practise. These include the standard of his record keeping and the fact that he continued to carry out podiatric surgery after the Tribunal had suspended him. However, I am also conscious that, where the interests of the public can be adequately protected, it is necessary to consider lesser forms of sanction than cancellation.² I consider this principle applies in the present case because I see no reason to doubt Mr Edwards’ competence in the field of podiatry generally as distinct from podiatric surgery. Conditions can be imposed to ensure that identified shortcomings such as record keeping are rectified and monitored.

[8] I am therefore satisfied that the cancellation of Mr Edwards’s registration should be set aside. In its place I will need to make an order restricting the scope within which he may practise for the maximum period of three years. Thereafter it

2. Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 10 August 2007 at [26].

will be a matter for the Podiatrists Board to determine whether he should be permitted to practise in other fields.

[9] I would be grateful if counsel could file a joint memorandum setting out the formal orders that will be necessary to achieve this outcome.

Costs

The Tribunal’s decision

[10] The total costs of the disciplinary process amounted to $491,822.56.³ These comprise the costs of the PCC ($298,612.46) and the Tribunal ($193,210.10). Mr Edwards acknowledged to the Tribunal that the costs incurred by both the PCC and the Tribunal were reasonable having regard to the nature, length and scope of the hearing.

[11] As a starting point the Tribunal considered that Mr Edwards should be required to meet one-half of the total costs incurred by both the PCC and the Tribunal. However, it reduced the award by five per cent to reflect the fact that Mr Edwards had successfully defended several of the particulars that made up the first charge. It also applied a further reduction of five per cent to reflect the fact that Mr Edwards had accepted liability for two of the particulars forming the second charge and had cooperated in presenting an agreed summary of facts for that charge. This meant it was not necessary for witnesses to be called in relation to the second charge. These discounts reduced the costs payable by Mr Edwards to the sum of $195,000.

Submissions

[12] Counsel for Mr Edwards contend that the final award of costs in the sum of

$195,000 is likely to represent the largest award of costs ever made by the Tribunal. They submit that the award should now be reduced further to reflect the fact that the appeal process reduced the number of particulars that the PCC was able to establish.

3. The Tribunal’s decision contains a typographical error at [578] where it states that total costs amounted to $419,822.56.

Having regard to Mr Edwards’ reduced ability to earn income they suggest an award of $50,000 is reasonable.

[13] Mr La Hood submits on behalf of the PCC that no adjustment to the costs award is required. He points out that the mitigating factors identified by the Tribunal related only to the second charge, for which the PCC incurred costs of just $15,643.60. However, the Tribunal applied the discount to the overall costs even though they related principally to the second charge. Mr La Hood submits that Mr Edwards has already received a significant financial windfall due to this error and no further reduction should be made.

Decision

[14] I do not place any weight on the submission for Mr Edwards that the award of costs in the present case may be the largest ever imposed by the Tribunal. The quantum of the award merely reflects the fact that the charges required an extraordinarily lengthy and complex hearing before the Tribunal.

[15] Similarly, Mr Edwards’ ability to meet a significant award of costs was the subject of considerable analysis in the Tribunal’s decision and it concluded he could meet an award of the size that it made. This Court would not be justified in taking a different approach, particularly as Mr Edwards will now be permitted to resume his career as a podiatrist.

[16] I acknowledge the force of the submission made by Mr La Hood regarding the fact that Mr Edwards received an overly generous discount for the manner in which he approached the second charge. However, I nevertheless consider some adjustment is necessary to reflect the fact that Mr Edwards’ appeal succeeded in relation to several of the particulars in the first charge. I agree with Mr La Hood that this issue cannot be approached on a mathematical basis and it must also recognise that Mr Edwards’ success on appeal did not extend to the most serious of the allegations he faced.

[17] I consider a further reduction of five per cent is required to reflect the level of success Mr Edwards achieved on the first charge. The award of costs will therefore be reduced to the sum of $172,000.

[18] I will make formal orders once counsel file the joint memorandum referred to at [9].

Lang J