In October 2015, the Board received a notification from a patient on whom the podiatrist had performed surgery. The complaint had been about the result of the surgery and did not deal with the adequacy of the consultation, discussion of risks, and process of obtaining consent.

After receiving the notification, the Board provided the podiatrist with a copy of the notification, and identified the issue as ‘whether the surgery you performed … was performed adequately’. The podiatrist was invited to provide a written response and a copy of his clinical notes.

The podiatrist responded, summarising the history of his treatment and his examination findings. Unsurprisingly, he did not then deal with the ‘consenting process’, given the complaint was about whether the surgery was performed adequately.

The Board subsequently wrote to the podiatrist advising that it had decided to investigate his performance. During its investigation, the Board did not speak to the podiatrist or advise him that the issue for investigation was broader.

After considering the information before it, the Board wrote to the podiatrist advising that it had formed the view that the way he practiced is or may be unsatisfactory and was proposing to caution him in relation to the consenting process. The focus had shifted from the surgery and its outcome to the initial consultation.

The podiatrist responded submitting that there was no evidentiary basis for the proposed action and that treatment options had been discussed. The podiatrist provided a consent form signed by the complainant.

Nonetheless, in November 2016, the podiatrist was advised that the Board had decided to caution him.

The podiatrist applied for judicial review of the Board’s decision on the bases that, firstly, the decision was manifestly unreasonable; and secondly, the Board denied him natural justice by relying on material that it did not disclose to him.

In relation to ground 1, the Supreme Court found the Board’s decision was within the power given to it. Allanson J concluded [at 60]:

“The Board had [the podiatrist’s] notes of the initial consultation and his report to the referring practitioner ...  Those notes … do not contain any reference to discussion of treatment options, their risks and likely outcomes at the initial consultation with the complainant.  The material before the Board could not prove that [the podiatrist] did not adequately discuss those matters; but I am not satisfied that no reasonable decision maker could believe it possible that he did not.  Within the scheme of the Act, a reasonable belief as to that possibility is all that is required for the Board to decide to caution under s 178.  And it was clearly open to the Board to judge the sufficiency of the information contained in the clinical records …”

In relation to ground 2 (the breach of natural justice), Allanson J accepted the Board’s submission that there was no evidence that it relied on any material other than the podiatrist’s submission and the clinical records he provided in response to the notification.

The podiatrist’s application for judicial review was dismissed.

To read the decision in da HORTA -v- PODIATRY BOARD OF AUSTRALIA [No 2] [2017] WASC 264, click here.