Application for judicial review of decision of Podiatry Board of Australia

On 24 November 2015 the Australian Health Practitioner Regulation Agency (AHPRA) sent Mr da Horta, a podiatrist, a letter advising him that it had received a 'notification', in effect a complaint about his conduct as a registered health practitioner. The notification was from a patient on whom Mr da Horta had performed surgery in 2013. The complaint related to the period after Mr da Horta operated on her foot. It is not in contention that the complaint did not deal with the adequacy of the consultation, discussion of risks and the process of obtaining consent.

On 24 November 2015, the Podiatry Board of Australia (Board) provided Mr da Horta with a copy of the notification, and identified the issue as being: 'whether the surgery you performed on 17 May 2013 to lengthen [the complainant's] Achilles tendon was performed adequately'.

On 9 December 2015, Mr da Horta responded to the Board, summarising the history of his treatment of the complainant and providing the Board with his clinical file. In this response, Mr da Horta did not deal with whether he had discussed alternative treatment options and risk, or the consenting process', with the complainant.

The Board advised Mr da Horta, by letter dated 14 January 2016, that it had decided to investigate his performance. On 28 July 2016, the Board wrote to Mr da Horta again, advising that the investigation was continuing. At this time, the Board did not advise Mr da Horta that the issue for investigation was broader than indicated in the notification.

On 7 September 2016, the Board informed Mr da Horta that the Board was now considering Mr da Horta's communication with the complainant and the 'consenting process'. In essence, the focus of the Board's investigation had shifted from the surgery and its outcome to the initial consultation.

Mr da Horta, through his solicitors, responded with a detailed submission, submitting that he had communicated 'clearly and openly with [the complainant] about the treatment options, the risks and possible benefits of surgery'. In support of his submission, Mr da Horta also provided a consent form that the complainant had signed.

On 30 November 2016, the Board advised Mr da Horta of its decision. He was advised that the Board had decided to caution him under s 178 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). Pursuant to s 178, the power to caution a practitioner may be exercised if the Board reasonably believes that the way a registered health practitioner practises their health profession, or the practitioner's professional conduct, is or may be unsatisfactory.

Mr da Horta applied for judicial review of this decision on two grounds:

1. that the decision was manifestly unreasonable; and

2. the Board denied him natural justice by relying on material that it did not disclose to him.

Findings

Mr da Horta's application for judicial review was dismissed.

As regards the first ground of judicial review, Mr da Horta asserted that the only material the Board had before it, to his knowledge, was the initial complaint (which did not deal with what was discussed at the initial consultation) and his submission.

Allanson J held that Ground 1 was not made out, as under the National Law, a reasonable belief is all that is required for the Board to decide to caution under s 178. Further, in deciding to take action under s 178, the Board may act on the reasonable belief of the members, which may be informed by the experience and expertise of the practitioner members. It was also open to the Board to make a judgement based on the clinical records produced by Mr da Horta in response to the notification.

As regards the second ground of judicial review, the Board submitted that there was no evidence that it relied on any material other than Mr da Horta's submission and the clinical records provided by Mr da Horta. This was accepted by Allanson J.

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