HCCC v Dr Brendan O'Sullivan - [2010] NSWMT 5

New South Wales

Medical Tribunal

CITATION: HCCC v Dr Brendan O'Sullivan [2010] NSWMT 5

TRIBUNAL: Medical Tribunal

PARTIES: Helath Care Complaints Commission
Dr Brendan O'Sullivan

FILE NUMBER(S): 40016 & 40017 of 2008

CORAM: Ainslie-Wallace, DCJ - O'Brien, Dr E - Edwards, Dr K - Mair, Dr J -

CATCHWORDS: Unsatisfactory professional conduct - Reprimand - Medical Ethics - Complete schedule pursuant to Schedule 2 Mental Health Act 1990 when he knew the patient was detained in prison - Gave the schedule to the Mother of the patient - Failure to maintain adequate records - Relationship with patient's partner - Obtain access to patients pathology records without the patient's consent.

LEGISLATION CITED: Medical Practice Act 1992 ss 36 & 37
Mental Health Act s 21 & Schedule 2
Code of Professional Conduct Part 4

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 362;
Director-General, Department of Community Services; re Sophie [1928] NSWCA 250;
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 171

DATES OF HEARING: 17.8.2009 to 18.8.2009
20.8.2009 to 18.8. 2009
15.8.2010 to 17.2.2010

DATE OF JUDGMENT: 9 April 2010

LEGAL REPRESENTATIVES: G Farmer of Counsel
S Connors Solicitor - Health Care Complaints Commission
P Maiden of Sentior Counsel
D Brown Solicitor - Brown Legal & Consulting

ORDERS: In respect of Complaint 1; 1 The respondent be reprimanded in respect of his writing of the Schedule 2 for Patient MA.; In respect of complaint 2; 2 The respondent complete at his own expense the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria or equivalent. The course must be completed within 2 years from the date of the orders.; 3 Within 4 weeks of the date of these orders, the respondent must provide evidence to the New South Wales Medical Board of his enrolment in the Ethics course.; 4 Within 4 weeks of completion of the course, the respondent to provide documentary evidence of his satisfactory completion of the course.; 5. This order may be amended, varied or removed at the discretion of the Medical Board of New South Wales; 6. The respondent pay the complainant's costs of the application.

JUDGMENT:

THE MEDICAL TRIBUNAL Friday 9th April 2010

OF NEW SOUTH WALES

AT SYDNEY

No. 40016 of 2008 and

40017 of 2008

BETWEEN

Health Care Complaints Commission

Applicant

Dr Brendan O'Sullivan

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr Elizabeth O'Brien

Dr Keith Edwards

Dr Judith Mair PhD

Orders and Reasons for Determination

Order:

Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the name of the patients and relatives referred to in the proceed ings.

1. The Health Care Complaints Commission (the ' complainant ') brings two complaints against the respondent. The first relates to his actions in writing a schedule pursuant to Schedule 2 of the Mental Health Act 1990 in respect of patient MA. The second concerns…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HCCC v Dr Brendan O'Sullivan

Details

AGLC: HCCC v Dr Brendan O'Sullivan [2010] NSWMT 5
Case: [2010] NSWMT 5
Decision Date: 9 April 2010

CaseChat Overview and Summary

In the matter of the Health Care Complaints Commission (HCCC) versus Dr Brendan O'Sullivan, the respondent faced charges related to unsatisfactory professional conduct, including the improper completion of a Schedule 2 pursuant to the Mental Health Act 1990, failure to maintain adequate records, and inappropriate conduct involving access to patient records and relationships with patients' partners. The case was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issues for determination were whether Dr O'Sullivan's actions constituted unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW). This included assessing if he correctly filled out the Schedule 2 form, maintained proper records, and adhered to ethical standards regarding patient confidentiality and relationships. The court had to evaluate the evidence and arguments presented by both parties to determine if Dr O'Sullivan's conduct warranted a reprimand or other disciplinary measures.

The Tribunal found that Dr O'Sullivan's conduct was indeed unsatisfactory. He was found to have improperly completed the Schedule 2 form for Patient MA, providing it to the patient's mother instead of the relevant authorities. Additionally, he failed to maintain adequate records and acted inappropriately by obtaining access to patients' pathology records without consent and engaging in a relationship with a patient's partner. The Tribunal ordered a reprimand, mandated the completion of a medical ethics course, and required Dr O'Sullivan to pay the complainant's costs. The orders also included specific timelines for the completion of the course and the provision of evidence to the Medical Board of New South Wales.

Orders

Orders of the court

In respect of Complaint 1; 1 The respondent be reprimanded in respect of his writing of the Schedule 2 for Patient MA.; In respect of complaint 2; 2 The respondent complete at his own expense the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria or equivalent. The course must be completed within 2 years from the date of the orders.; 3 Within 4 weeks of the date of these orders, the respondent must provide evidence to the New South Wales Medical Board of his enrolment in the Ethics course.; 4 Within 4 weeks of completion of the course, the respondent to provide documentary evidence of his satisfactory completion of the course.; 5. This order may be amended, varied or removed at the discretion of the Medical Board of New South Wales; 6. The respondent pay the complainant's costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	HCCC v Dr Brendan O'Sullivan [2010] NSWMT 5
TRIBUNAL:	Medical Tribunal
PARTIES:	Helath Care Complaints Commission Dr Brendan O'Sullivan
FILE NUMBER(S):	40016 & 40017 of 2008
CORAM:	Ainslie-Wallace, DCJ - O'Brien, Dr E - Edwards, Dr K - Mair, Dr J -
CATCHWORDS:	Unsatisfactory professional conduct - Reprimand - Medical Ethics - Complete schedule pursuant to Schedule 2 Mental Health Act 1990 when he knew the patient was detained in prison - Gave the schedule to the Mother of the patient - Failure to maintain adequate records - Relationship with patient's partner - Obtain access to patients pathology records without the patient's consent.
LEGISLATION CITED:	Medical Practice Act 1992 ss 36 & 37 Mental Health Act s 21 & Schedule 2 Code of Professional Conduct Part 4
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 362; Director-General, Department of Community Services; re Sophie [1928] NSWCA 250; Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 171
DATES OF HEARING:	17.8.2009 to 18.8.2009 20.8.2009 to 18.8. 2009 15.8.2010 to 17.2.2010
DATE OF JUDGMENT:	9 April 2010
LEGAL REPRESENTATIVES:	G Farmer of Counsel S Connors Solicitor - Health Care Complaints Commission P Maiden of Sentior Counsel D Brown Solicitor - Brown Legal & Consulting
ORDERS:	In respect of Complaint 1; 1 The respondent be reprimanded in respect of his writing of the Schedule 2 for Patient MA.; In respect of complaint 2; 2 The respondent complete at his own expense the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria or equivalent. The course must be completed within 2 years from the date of the orders.; 3 Within 4 weeks of the date of these orders, the respondent must provide evidence to the New South Wales Medical Board of his enrolment in the Ethics course.; 4 Within 4 weeks of completion of the course, the respondent to provide documentary evidence of his satisfactory completion of the course.; 5. This order may be amended, varied or removed at the discretion of the Medical Board of New South Wales; 6. The respondent pay the complainant's costs of the application.