Supreme Court dismisses application for judicial review of Board decision

12 Oct 2017

The Supreme Court of Western Australia (the court) has dismissed an application for judicial review of a decision by the Podiatry Board of Australia (the Board) to caution Mr Mario da Horta, a podiatrist and podiatric surgeon, over his practise of the profession.

On 15 November 2016, the Board’s Registration and Notification Committee (the Committee) cautioned Mr da Horta to ‘ensure that in future he will conduct an appropriate initial assessment of his patients, explain all available alternate treatment options, explain risk of proposed treatment, and communicate effectively in accordance with section 2.2 of the Podiatry Board of Australia's Code of Conduct (the Code), and further, ensure that a more thorough consenting process is conducted prior to treatment pursuant to section 3.5 of the Code, and maintain adequate clinical records in accordance with section 8.4 of the Code.'

On 2 February 2017, Mr da Horta applied for judicial review in the court against the Board seeking that the decision be set aside by way of a quashing of the decision (i.e. a writ of certiorari) or a declaration. The grounds of his application were that the decision to caution him was manifestly unreasonable in the sense that no reasonable decision maker could have made such a finding, and that the Board had denied him natural justice by relying on material that it did not disclose to him.

His Honour Justice Allanson reserved his decision at a hearing on 7 August 2017 before handing down his judgment in open court on 8 September 2017. In dismissing Mr da Horta’s application, His Honour found that in deciding to take action under section 178 of the Health Practitioner Regulation National Law (the National Law), as in force in each state and territory, the Board acts on the ‘reasonable belief’ of the members, which may be informed by the experience and expertise of its practitioner members.

His Honour found the Board was not required to give reasons for its decision. As such, it was not obliged to set out findings or refer to the evidence or other material on which those findings were based. Pursuant to section 178 of the National Law, it was sufficient for the Board to form a reasonable belief that Mr da Horta’s performance may be unsatisfactory, rather than requiring the Board to establish on the balance of probabilities that the belief is true or correct.

His Honour went on that say that there must be a factual basis for the Board’s belief about the way Mr da Horta practises or his conduct; however the court is concerned only with whether the Board could rationally have held the belief on the material available to it. The Board had in its possession Mr da Horta’s clinical notes which were confined to the history, findings on examination and a record that an ultrasound had been requested. The notes did not contain any reference to discussion of treatment options, their risks and likely outcomes.

His Honour found that all the Board was required to do was to form ‘a reasonable belief’ as to the possibility that Mr da Horta had failed to do certain things. In this regard, His Honour was satisfied that a reasonable decision maker like the Board could believe, based on the material before it and practitioner member expertise, that Mr da Horta failed to adequately address the matters outlined.

In response to Mr da Horta’s claim that the Board relied on material not disclosed to him, the Board submitted that the only evidence it relied upon in making its decision was Mr da Horta’s response and the clinical records, which were provided by Mr da Horta himself. His Honour accepted the Board’s submission.

His Honour dismissed both grounds of Mr da Horta’s application. In doing so, he accepted the Board’s contention that a decision to caution is not amenable to a writ certiorari because it does not affect legal rights, duties or obligations.

His Honour made an order that Mr da Horta pay the Board’s costs, determined by a formal assessment of costs conducted by the court if not agreed.

The decision is available on the court website.