MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE (NO 2) [2022] NZHC 839

MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE (NO 2) [2022] NZHC 839[27 April 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-514[2022] NZHC 839UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN MOVEME HEALTH LIMITEDApplicantAND NEW ZEALAND ARTIFICIAL LIMBSERVICERespondentHearing: On the papers [Further submissions received 4 and 11 April 2022]Counsel: A H Waalkens QC, C M Marks and J W Upson for ApplicantM G Colson QC, B A Davies for RespondentJudgment: 27 April 2022JUDGMENT (NO 2) OF ISAC J[Final orders]Introduction[1] In my principal judgment,1 I declined MoveMe Health Ltd's application fordeclarations circumscribing the scope of the New Zealand Artificial Limb Service'sstatutory functions.2[2] Although I declined to grant the applicant the relief it had sought, in the courseof determining the application I made several observations about the scope of thedefinition of an artificial limb in s 4 of the Artificial Limb Service Act 2018.1 MoveMe Health Ltd v New Zealand Artificial Limb Service [2022] NZHC 577.2 At [127]–[128].The statutory definition of an artificial limb includes "a similar device" to an artificialarm, hand, leg, or foot. One of the issues I had to consider was whether an orthosiswas a similar device. I concluded:3 a "similar device" for the purposes of the Artificial Limb Service Act 2018includes an orthotic device that supports a limb and promotes mobility(whether the limb is missing, partly missing or impaired). I consider thatconclusion is sufficient to determine the extent of the Service's functions.[3] I called for submissions on the appropriateness of granting a declaration alongthe lines noted, and the precise form of any such declaration. Submissions weresubsequently filed. This judgment addresses whether it is appropriate to grant adeclaration and, if so, its precise terms.MoveMe's submissions[4] MoveMe submits that a declaration should be made, but not in the termsproposed in the principal judgment. MoveMe submitted that the terms of the proposeddeclaration could be supplemented to clarify its application to particular patientgroups. The declaration sought was in three parts:Part A:A "similar device" for the purposes of para (b) of the definition of "artificiallimb" in s 4 of the Artificial Limb Service Act 2018 includes an orthotic devicethat (i) avoids or reduces a real, in the sense of being appreciable ordemonstrable, risk of amputation; or (ii) supports a limb and promotesmobility (whether the limb is missing, partly missing or impaired).Part B:An orthotic device that is a similar device but which can also serve functionsor purposes not provided for in this declaration is a "similar device" only whenused for a purpose or function consistent with this declaration.Part C:Services to persons in connection with an orthotic device that is a similardevice but which can also serve functions or purposes not provided for in thisdeclaration are only within the functions of the New Zealand Artificial LimbService under s 8(b) of the Artificial Limb Service Act 2018 if the orthoticdevice is a "similar device" in terms of this declaration.3 At [138].[5] The applicant contends that, contrary to the Court's findings, the Service'sposition is:(a) that all orthoses are similar devices for the purposes of the Act; and(b) that the Service is unconstrained in the patient group it providesservices to.[6] It follows that the Services' contended scope of service provision exceeds itsfunctions under the Act, and its entry into contracts with district health boards forgeneral orthotic services is inconsistent with the Court's findings.The Service's submissions[7] The respondent's primary submission was that no declaration should be made.The proposed declaration, and those suggested by the parties, might simply lead tofurther litigation. For instance, what is meant by "mobility" or "functionality"? TheService submits that, when read as a whole, the principal judgment provides clarity onall matters. Second, it is said that the evidence had not been directed to the proposeddeclaration; rather, it addressed the specific declarations sought by the applicant.[8] The Service also argued there are grey areas not resolved by the proposeddeclaration, and these areas of ambiguity reflect the specific evidential and legalcontext in which the judgment was given. That context included MoveMe's choice tofocus on the narrow proposition that a similar device is one that replaces or augmentsa missing limb, rather than focus on particular orthoses, or one of the relevant DHBorthotic services contracts.[9] The Service went on to submit that the proposed declaration might not fullyreflect the similarity between orthoses and prostheses highlighted in the expertevidence which I preferred:This evidence is set out in the paragraphs leading to your Honour'sconclusion that a "wider and more coherent view is that the function ofprosthetic limbs is to support and promote mobility". However, a declarationreferring only to promoting mobility may not fully capture all aspects ofcompensating for or accommodating lost function/ improving functionality.Mobility (i.e. movement) may not be essential to functionality. Part of a limbmay need to be immobilised or supported in order to allow another part tomove or function. For example, supporting a weak knee in extension to allowweight bearing to stand to prepare a meal at a bench for someone whosemobility is via a wheelchair.[10] If a declaration were to be made, an alternative formulation is proposed:'Similar device' for the purposes of the Artificial Limb Service Act 2018includes an orthotic device that:• supports a limb and promotes mobility and/or function (whether the limbis missing, partly missing, impaired or compromised); or• otherwise compensates for or accommodates lost function of themusculoskeletal and/or neurological system.Decision[11] I have concluded that it is not appropriate to make a declaration, either in theterms proposed in the principal judgment, or those suggested by either party.[12] The submissions, and the wide divergence in the terms of the proposeddeclaration, highlight the difficulty this case presents. It involves the application of anabstract and broad expression — "a similar device" — to a complex clinical andcommercial setting. In large part due to concerns about the case specific focus of theargument and evidence, I addressed the meaning of a "similar device" using inclusiverather than exhaustive language at [138] of the principal judgment.[13] As the Service submits, for a declaration to have utility it should be factspecific, efficacious and capable of practical application.4 Although I accept that theterms of the alternative declaration proposed by the Service, noted at [10] above, fairlyreflect my acceptance of its expert evidence, having considered the positions presentedby the parties, I have concluded that the principal judgment must speak for itself. Adeclaration radically at odds with that originally sought by the applicant, and theevidence and submissions filed by the parties, is not appropriate. It would invite furtherdispute over new questions of interpretation, and would not comprehensively addressthe scope of the respondent's functions. It would also create a risk of unfairness, given4 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR1708 at [80].the evidence and submissions filed sought to address the issues as the applicant definedthem.Result[14] For the foregoing reasons, I decline to make a declaration.Isac JSolicitors:Russell McVeagh, Wellington for ApplicantMinterEllisonRuddWatts, Wellington for Respondent