BHARATH RAJA SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE OF THE DENTAL COUNCIL [2023] NZCA 375

BHARATH RAJA SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE OF THE DENTALCOUNCIL [2023] NZCA 375 [18 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA186/2023[2023] NZCA 375BETWEEN BHARATH RAJA SUBRAMANIAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE OF THE DENTALCOUNCILRespondentHearing: 25 July 2023Court: Miller, Moore and Palmer JJCounsel: A H Waalkens KC and S R Courtney for AppellantJ P Coates and A N Lane for RespondentJudgment: 18 August 2023 at 2.00 pmJUDGMENT OF THE COURTThe appeal against the refusal to grant a stay is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] In a decision dated 16 December 2022,1 the Health Practitioners DisciplinaryTribunal | Tarapuinara Whakatika Kaimahi Hauora (the Tribunal) foundDr Bharath Subramani guilty of one charge of professional misconduct.2[2] The Tribunal ordered the cancellation of Dr Subramani's registration as adentist,3 effective six weeks from the date of the decision, and imposed a $10,000 fine.It also censured Dr Subramani and ordered him to pay $150,000 in costs.4[3] On 14 February 2023, Osborne J declined Dr Subramani's application for aninterim stay of the order cancelling his registration.5 Dr Subramani now appeals thatrefusal.Procedural background[4] Dr Subramani filed an appeal of the Tribunal's decision insofar as it related tothe order for cancellation and fine. That appeal is due to be heard by the High Courton 4 and 5 September 2023.[5] Pending the substantive appeal, Dr Subramani sought, on a without noticebasis, an interim stay of the Tribunal's decision.6 On 23 December 2022, Osborne Jmade orders that the date on which Dr Subramani's registration would be cancelledwould be 17 February 20237 and that the Tribunal's decisions as to censure, fine andcosts were stayed until further order of the Court.81 A Professional Conduct Committee Appointed by the Dental Council of New Zealand v SubramaniHPDT 1282/Den21/511P, 16 December 2022 [Tribunal decision].2 Health Practitioners Competence Assurance Act 2003, s 100(1)(a)–(b).3 Tribunal decision, above n 1, at [655] and [668]. It did so pursuant to s 101(1)(a) of the HealthPractitioners Competence Assurance Act.4 At [656], [666] and [668].5 Subramani v A Professional Conduct Committee Appointed by the Dental Council of New Zealand[2023] NZHC 189 [Decision under appeal].6 High Court Rules 2016, r 20.10.7 It was previously to be 27 January 2023.8 Subramani v A Professional Conduct Committee Appointed by the Dental Council of New Zealand[2022] NZHC 3619.[6] An on notice application for stay was then filed. This was heard by Osborne Jon 7 February 2023. On 14 February 2023 the Judge declined continued relief, savefor an extension of existing interim relief until 7 March 2023.9[7] Dr Subramani then sought leave to appeal to this Court.10 This was granted byOsborne J on 5 April 2023 on the basis that the proposed issues were of sufficientimportance to justify, in the interests of justice, leave to appeal.11 The Judge was alsopersuaded, albeit he said by a fine margin, that a further period of stay should begranted in respect of the cancellation of Dr Subramani's registration.12 This was to beextended until the hearing of his appeal against the refusal to grant a stay, onconditions.13[8] This judgment deals with whether the interim orders should be extended untilthe hearing and determination of Dr Subramani's substantive appeal.Background[9] Dr Subramani was a registered dentist practising on the West Coast ofNew Zealand. The charge of professional misconduct arises from his care of11 patients between October 2017 and October 2018. During this periodDr Subramani was the sole dentist in charge at the Lumino dental practice inGreymouth.[10] In September 2018, the Lumino Group received complaints aboutDr Subramani's care of patients. An internal review undertaken by Dr Chris Brooks,a clinical advisor with the Lumino Group, resulted in the termination ofDr Subramani's contract. In October 2018, Dr Brooks also wrote to theDental Council of New Zealand (the Council) outlining his concerns. This led to the9 Decision under appeal, above n 5.10 Senior Courts Act 2016, s 56(3).11 Subramani v A Professional Conduct Committee Appointed by the Dental Council of New Zealand[2023] NZHC 757.12 At [32].13 At [33]. The appellant was to file an application to this Court for urgency in hearing his stayappeal, and to retain the services of a supervisor of his practice in accordance with the supervisoryarrangements that were previously in place.convening of a Professional Conduct Committee (the Committee) to investigate thematters raised.[11] From early 2019, Dr Subramani established his own practice in Greymouthand practised under interim conditions imposed by the Council, including supervision.[12] Following the Committee's investigation, a disciplinary charge was broughtagainst Dr Subramani. He accepted that his conduct amounted to professionalmisconduct. The particulars of misconduct included that he had:(a) failed to undertake necessary diagnostic evaluations;(b) taken x-rays of such an inadequate standard that they served little or nopurpose for diagnostic and treatment planning;(c) provided inappropriate and unnecessary treatment, including theplacing of fillings and providing bite splints;(d) recommended inappropriate and unnecessary treatment for patients,including extractions;(e) provided dental treatment of an inadequate standard, including smallfillings;(f) charged excessive fees for some aspects of treatment;(g) failed to obtain informed consent from patients prior to providingservices; and(h) kept inadequate documentation and clinical records.[13] The matter proceeded to hearing before the Tribunal in February 2022 inrelation to penalty. No witnesses were required, and statements were taken as read.[14] In its decision of 16 December 2022, the Tribunal found that the professionalmisconduct was serious because it was wide ranging, repetitive, and unethical. Someof the patients were vulnerable. The failure to record patients' medical histories wassaid to constitute a major departure from accepted practice and was potentially fatal.14In respect of one patient in particular, the Tribunal described Dr Subramani's dentalcare as "woefully inadequate, extensive and invasive", requiring significant remedialwork.15 The cumulative effect of all of these shortcomings was determined to be "veryserious indeed".16[15] The Tribunal's view was that Dr Subramani was operating at the level of ajunior dental student.17[16] In assessing the risk to the public, the Tribunal stated:18Despite the fact that he has experienced positive direct and indirectsupervision of about 700 hours over the past 18 months [from] Dr Shand, hestill requires further education. The Tribunal concluded that Dr Subramanihas done a lot but achieved little.Dr Subramani's "rehabilitation" seems to be a lifelong journey. Based on hisprogress to date, it is difficult to understand that within the foreseeable futurehe will be operating at the standard expected of a reasonable dentist. Thepublic safety cannot take second place to Dr Subramani's ongoing learning onthe job, to achieve the level of competence expected of a graduate.[17] As to the appropriate penalty, the Tribunal concluded:19Because of the seriousness of the conduct and our lack of confidence inDr Subramani's ability to reach and maintain the standard required of adentist, the Tribunal does not believe anything short of cancellation isappropriate. The Tribunal is not satisfied that Dr Subramani can work withoutsupervision, or that Dr Subramani would be able to work without supervisionafter a further three years, which is the longest period the Tribunal could orderfor. Therefore, a term of suspension followed by conditions that he workunder supervision would provide no long-term protection for the public.14 Tribunal decision, above n 1, at [650].15 At [650(g)].16 At [650(h)].17 At [617].18 At [638]–[639].19 At [652]–[653].Temporary periods of supervision and support are appropriate where there isa prospect of rehabilitation. The Tribunal is not persuaded that is the casehere.Relevant law[18] The applicable law is as set out in the decision under appeal.20 The stayapplication was brought pursuant to r 20.10 of the High Court Rules 2016, whichprovides:20.10 Stay of proceedings(1) An appeal does not operate as a stay—(a) of the proceedings appealed against; or(b) of enforcement of any judgment or order appealedagainst.(2) Despite subclause (1), the decision-maker or the court may,on application, do any 1 or more of the following pendingdetermination of an appeal:(a) order a stay of proceedings in relation to the decisionappealed against:(b) order a stay of enforcement of any judgment or orderappealed against:(c) grant any interim relief.(3) An order made or relief granted under subclause (2) may—(a) relate to enforcement of the whole of a judgment ororder or to a particular form of enforcement:(b) be subject to any conditions for the giving of securitythe decision-maker or the court thinks just.[19] Subsection (1) reflects the general rule in litigation that a party is entitled toenjoy the benefits of judgment in their favour and that a party seeking a stay mustpersuade the court that, if a stay is not granted, the appeal right would be renderednugatory.[20] It is now well established that the considerations relating to a stay under r 12of the Court of Appeal (Civil) Rules 2005 are equally applicable to the court's task20 Decision under appeal, above n 5, at [20]–[23].under r 20.10. In short, a balancing exercise is required, taking into account theconsequences for all parties to the appeal. The following criteria are to be applied:21(a) whether the appeal will be rendered nugatory if a stay is not granted;(b) the bona fides of the applicant in the prosecution of the appeal;(c) whether the successful party will be injuriously affected by the stay;(d) any effect on third parties;(e) the novelty and importance of the questions involved in the appeal;(f) the public interest in the proceeding;(g) the apparent strength of the appeal; and(h) the overall balance of convenience.Decision under appeal[21] The Judge began by identifying the four main areas of discussion arising fromthe various affidavits before him:22(a) the standard of Dr Subramani's recent practise — while it wasappropriate for the Committee to draw to the Court's attentioninformation of which the deponents had become aware, it would beinappropriate to rely on the information being reported as sufficientlyaccurate to constitute evidence against the granting of a stay —questioning of the original sources of the reported information mightwell alter the impression provided by the reports;(b) the supervision arrangements — the replacement of Dr Shand byDr Gorrie means there would be continuing supervision in placeshould a stay be granted;(c) the impact on Dr Subramani and associated persons — thesupplementary evidence points clearly to the significant financial21 Yan v Mainzeal Property and Construction Ltd (in rec and in liq) [2014] NZCA 86, (2014) 22PRNZ 296 at [25].22 Decision under appeal, above n 5, at [41] (footnote omitted).consequences for Dr Subramani and his staff should the cancellationtake effect; and(d) availability of dentists on the West Coast — whereas Dr Gray pointedout that an article relied on by Dr Subramani as to dentist shortageson the West Coast was first published in 2002, the Council's own up-to-date figures indicate clearly the extent to which adults on the WestCoast are behind all other regions in their access to dentists.[22] As to the approach to the Tribunal's findings, the Judge stated that deferenceto a specialist tribunal is appropriate,23 endorsing the observation of Simon France Jin A v A Professional Conduct Committee that "a specialist tribunal may, and indeedis expected to, assess the evidence using its professional knowledge and experience".24[23] The Judge went on to consider the factors relevant to stay, prefacing thediscussion by noting Mr Waalkens KC's submission for Dr Subramani that thesupervision arrangements in place for Dr Subramani's practice made the case and theapplication unique. Dr Subramani was restricted to basic dentistry with those servicesclosely and reliably supervised which, Mr Waalkens submitted, removed any real riskof harm to the public. The Judge also referred to Mr Waalkens' emphasis on the timethat has elapsed since the misconduct (at least five years) and the wider interests ofthe community in having a dental practitioner such as Dr Subramani available.25Would the right of appeal be rendered nugatory?[24] The Judge found that the refusal of a stay would not render the appeal nugatoryin the usual sense. The appeal seeks to overturn the cancellation of registration andthe fine. The fine, if quashed, having previously been paid, could be refunded. Thecancellation, if quashed, would enable Dr Subramani to practise as a dentist inNew Zealand once more. There was no evidence that he would not find employmentas a dentist if successful in his appeal.2623 At [42].24 A v A Professional Conduct Committee [2018] NZHC 1623 at [17].25 At [43].26 At [44]–[45].Bona fides of the appellant[25] The Judge found nothing to suggest the appellant was other than bona fide inbringing and pursuing his appeal.27Would the successful party be injuriously affected by the stay?[26] The Judge acknowledged that the immediate impact of cancellation would besignificant on Dr Subramani's practice and its staff members, as well as onDr Subramani and his family financially.28 However, the question of injury was to beapproached in accordance with the Health Practitioners Competence Assurance Act2003 by looking at the impact of a stay on public safety and public confidence in thedental profession and its disciplinary processes.29[27] The Judge recognised some force in Mr Waalkens' submission that thesupervision arrangements in place had the function of protecting the public in order toremove a risk of harm.30 In assessing risk of injury, however, the Judge stated that itwould be inappropriate to depart from the conclusion of the specialist body reachedon a substantial body of evidence following a lengthy penalty hearing. Thatconclusion was that the risk of injury to the public as at 2022 remained significant andthat Dr Subramani did not have prospects of rehabilitation. This factor was said toweigh significantly against a stay.31The effect on third parties[28] The Judge considered this factor to be neutral.32 Dr Subramani was providinga resource in a region significantly under-resourced in dentists, particularly thoseoffering after-hours/emergency services. Refusal of a stay would mean that existingpatients would need to see another dentist and could experience delays. On the otherhand, the Judge noted the need to balance this factor against the risk of harm to27 At [46].28 At [47].29 At [48]–[49].30 At [50].31 At [52]–[53].32 At [57].patients, and the apparent capacity of Dr Migda (a dentist at Dr Subramani's practice)to assume an increased workload.33Novelty and importance of the question involved[29] The Judge found there was no novelty in the issues raised on appeal, butsignificant importance both for Dr Subramani and the regime of professionaldiscipline. He accepted Ms Lane's submission for the Tribunal that disciplinaryimportance operates in favour of the refusal of a stay. It would not be appropriate tooverride the Tribunal's clear conclusions leading to cancellation on the basis of limitedmaterial and argument on an interlocutory hearing; the appropriate point would beafter the substantive appeal hearing.34Public interest in the proceedings[30] The Judge endorsed the High Court's observation in Edwards v A ProfessionalConduct Committee that there is an inherent public interest in disciplinaryproceedings.35 He stated that as with the previous factor, this leaned slightly in favourof matters being determined following a substantive appeal hearing.36Apparent strength of the appeal[31] The Judge regarded this factor as neutral. He stated:37I have regard to the technical nature of the subject matter and the Tribunal'sspecialist expertise in relation to the matters of penalty it had to determine. Ihave also had the benefit of considering the reasoning in the Tribunal's 669-paragraph decision. I do not consider the prospects of a successful appealcould be classified as "strong".Conclusion[32] On the basis of these factors, the Judge was clearly satisfied that the fair andjust outcome was that the cancellation of Dr Subramani's registration not be stayed.He was further satisfied that there was no basis at all for staying the order for the33 At [54]–[56].34 At [58].35 At [59], citing Edwards v A Professional Conduct Committee [2022] NZHC 971 at [36].36 At [60].37 At [61].payment of the fine.38 The previous stay of the censure, fine and costs order wasrescinded.39Approach on appeal[33] An appeal against refusal to grant a stay is an appeal against the exercise of adiscretion.40 This Court will not interfere with the decision unless it can be shown thatthe Judge:41(a) made an error of law;(b) failed to take a relevant consideration into account;(c) took an irrelevant consideration into account; or(d) was plainly wrong.[34] The appeal will be dismissed in any other case.Discussion[35] We propose to deal with the relevant factors in the same order as they wereaddressed by the Judge, incorporating the respective submissions of the parties inrelation to each.Would the right of appeal be rendered nugatory?[36] As Mr Waalkens responsibly accepted, this is not a case in which the refusalof a stay would render the appeal nugatory. We agree with Osborne J's reasoning onthis point. The fine can be refunded if paid. Cancellation and its likely consequences38 At [62].39 At [64].40 Tana v Housing New Zealand [2017] NZHC 1768 at [9]; Northland Co-Operative Dairy Co Ltd vJensen HC Whangarei M2445/91, 21 December 1991 at 3–4; and New Zealand Insulators Ltd vABB Ltd (2006) 18 PRNZ 459 (CA) at [12]–[13].41 May v May (1982) 1 NZFLR 165 (CA) at 170; and Kacem v Bashir [2010] NZSC 112, [2011] 2NZLR 1 at [32].are not irreversible or irreparable, nor does any of the evidence adduced by theappellant seriously suggest otherwise.Bona fides of the applicant[37] This factor is not in dispute. The applicant is plainly bona fide in bringing andpursuing the appeal.Would the successful party be injuriously affected by the stay?[38] Mr Waalkens submits that the Judge was wrong to consider the wider publicinterest in his discussion of this criterion. He says that injury to the respondent is nota factor that has application in this case. That is because there is no exposure to harmor risk of injury to the Tribunal.[39] We agree with Osborne J's reasoning. The Judge recognised the conceptualawkwardness of considering issues of public safety and public confidence in the dentalprofession and its regulatory processes as features which might be considered underthis criterion.42 In our view Mr Waalkens' submission is unnecessarily literal. Thecriteria in Yan are not to be interpreted as rigid, hard-edged rules.43 They are designedto inform the various considerations which may be relevant to whether a stay in aparticular case should be granted. Some may apply. Others may not. They areself-evidently of general application and their utility will necessarily depend on thenature of the case involved.[40] It follows we do not accept that the Judge erred in importing the statutoryoverlay in this manner. As observed by Mr Coates for the Tribunal, the jurisdiction isprotective. Further, the approach taken by Osborne J is consistent with that taken byWylie J in Edwards v A Professional Conduct Committee, where the Judge acceptedcounsel for the Committee's submission that in a case where the respondent is notitself affected by any stay, the central question is whether a stay would have an impacton the health and safety of members of the public.4442 Decision under appeal, above n 5, at [48].43 Yan v Mainzeal, above n 24.44 Edwards v A Professional Conduct Committee, above n 42, at [28]–[31].[41] That must be correct. The protection of the health and safety of the public byensuring health practitioners are competent and fit to practise sits at the heart of anysuch determination. It informs the discussion under several of the accepted staycriteria.[42] Mr Coates submitted that the statutory regime is of such central importancethat it should found the creation of a new criterion, or be added as a rider to that whichdeals with the public interest in the proceedings. Without minimising the importanceof this factor, we do not believe this is a case justifying a change to the well-establishedprinciples in Yan for the reasons already discussed. The protective purpose of thelegislation, here the protection of the public from harm caused by an incompetentdentist, may properly be considered under the present head, that relating to publicinterest, or as part of the overall assessment of where the balance of convenience lies.The Judge plainly had the statutory objective at front of mind as is apparent not onlyfrom his discussion under this head but from the judgment read as a whole.The effect on third parties[43] Mr Waalkens submits that if the stay is not granted the collateral damage tothird parties will be considerable. Dr Subramani's dental practice will close.Consequentially, patients, staff and the appellant will be disadvantaged. He submitsthat the High Court was wrong to weigh these effects against the risk of harm topatients. In doing so the Court failed to adequately consider the undisputed evidenceof supervision arrangements and erred in relying on the findings of the Tribunal as tothe appellant's incompetence and his dismal prospects of rehabilitation.[44] We accept the impacts of cancellation on Dr Subramani, his practice and hisfamily will be significant. However, we do not consider the Judge erred in balancingthese impacts against the risk to the public and assessing this factor as neutral.[45] In assessing the risk to the public, it was entirely appropriate for the Judge toshow deference to the Tribunal's expertise. The Tribunal received and considered allof the evidence. It made formal findings contained in an extremely detailed andcomprehensive 669 paragraph decision. The misconduct was not contested.[46] An interlocutory application for stay is not the appropriate forum to undertakea separate analysis of the appellant's competence or the adequacy of any supervisionarrangements. As Mr Coates submitted, to do so would require a highly technical,evidential review of the Tribunal's findings. That is appropriately dealt with by theHigh Court on the substantive appeal. We wish only to make the following briefobservations.[47] First, despite the significant investment in supervising the appellant,Dr Subramani continues to operate at a significantly sub-optimal level of proficiency.The Tribunal described it as equivalent to that of a second-year dental student. Thatwas as at 2022. Mr Waalkens submits that this assessment was made in respect ofwork undertaken some five years ago which Dr Subramani accepts was unacceptable.His subsequent supervision by various senior dentists, particularly by Dr Shand,reveals a marked improvement in proficiency, albeit only in basic dentistry. However,both the Tribunal and Osborne J took the evidence of Dr Subramani's supervision intoaccount. We are not in a position, nor is it our role on this appeal, to undertake adetailed analysis of the evidence to determine of the correctness of those conclusions.[48] Secondly, we do not accept that Dr Subramani's long-term prospects ofrehabilitation are encouraging. The Tribunal listed the various dental supervisors whohad monitored Dr Subramani's work, including Dr Shand, noting that:45A practitioner who has had more than 3 years to learn and rehabilitate shouldnot now require ongoing intensive supervision at the level that Dr Subramanihas, and further education in order to widen his scope to undertake generaldentistry. Despite the fact that he has experienced positive, direct and indirectsupervision of about 700 hours over the past 18 months [from] Dr Shand, hestill requires further education. The Tribunal concluded that Dr Subramanihas done a lot but achieved little.[49] Relatedly, the Tribunal also referred to evidence which showed that whensupervision is removed, Dr Subramani's proficiency levels appear to lapse.46[50] We do not ignore the affidavits of Dr Shand in which he repeats the opinion heexpressed in evidence before the Tribunal, namely that Dr Subramani under45 Tribunal decision, above n 1, at [638].46 At [625].supervision continues to practise satisfactorily and without risk to the public. Also insupport is an affidavit from Dr Migda who practised for a short period inDr Subramani's practice before returning to her native Poland. She described how hisstandards of practice have "substantially" improved and that "he should be entitled toanother chance". This evidence does tend to provide support for the claim thatDr Subramani's dental competence may have improved but that is evidence which ismore appropriately considered at the substantive hearing for the reasons already given.[51] Thirdly, we accept Mr Coates' submission that it is difficult to see how therefusal of a stay will cause irreparable harm to the appellant and his wider network.Any such harm must be assessed in the context of his admitted professionalmisconduct. As for adverse media attention, Dr Subramani's case has already attractedmedia interest. The stay application itself is unlikely to attract significant interest. Thesame cannot be said of the substantive appeal.[52] Finally, while we acknowledge the unfortunate reality that the appellantpractises in a region which is underserved by dentists, we question whether permittingDr Subramani to continue to practise represents a principled response to that deficit.It cannot be overlooked that his professional regulator found he was practising wellbelow an acceptable standard. It determined his prospects of rehabilitation were poor.We also note the updated evidence that Dr Subramani has since been spending sometime practising in Christchurch. The relevant considerations in play engage not onlythe protection of dental patients on the West Coast and Christchurch, but also theprotection of the reputation of the dental profession as a whole.Novelty and importance of the question involved[53] We do not accept Mr Waalkens' submission that the ongoing supervision of theappellant's practice is a novel factor which marks this case apart from others. Theissues raised by the appeal are entirely orthodox. The principles are well settled.[54] We also agree with the Judge that the importance of the appeal to Dr Subramaniand the professional disciplinary regime leans in favour of a stay not being granted.As noted above, an interlocutory hearing is not the appropriate forum in which toconduct a forensic analysis of the Tribunal's conclusions as to the appellant'scompetence and the adequacy of any supervision arrangements.Public interest in the proceedings[55] The Judge correctly directed himself to the inherent public interest indisciplinary proceedings as observed by the High Court in Edwards v A ProfessionalConduct Committee.47[56] Mr Waalkens submits that there is a strong public interest in not losing a dentistin the West Coast region. We have dealt with this argument above at [52]. In our viewthe greater public interest lies in protecting the health and safety of the public byensuring health practitioners are competent and fit to practise.Apparent strength of the appeal[57] Finally, we do not consider this is a case where the merits of the proposedappeal are so obvious and so favour the appellant that this factor operates in favour ofa stay. Although it will be for the High Court at the substantive appeal to decide,nothing in the material we have reviewed suggests that the prospects of success arestrong.Conclusion[58] The appellant has failed to persuade us that the Judge erred in law, failed totake a relevant consideration into account, took an irrelevant consideration intoaccount, or was plainly wrong.[59] Dr Subramani will have a full opportunity to challenge the Tribunal's decisionon cancellation when his appeal is heard later this year. In the interim, we are satisfiedthat a refusal of the stay is the appropriate outcome.47 Edwards v A Professional Conduct Committee, above n 42, at [36].Result[60] The appeal against the refusal to grant a stay is dismissed.Solicitors:Wotton + Kearney, Wellington for AppellantClaro Law, Wellington for Respondent