Health Care Complaints Commission v Do [2014] NSWCA 307
Hearing dates:
11 March 2014
Decision date:
04 September 2014
Before:
Basten JA at [1]; Meagher JA at [2]; Emmett JA at [56]
Decision:
(1) Appeal allowed.
(2) Set aside orders 1 to 4 made by the Medical Tribunal on 2 August 2013.
(3) Declare that if the respondent were still registered as a health practitioner as at 2 August 2013 the Court would have cancelled her registration with effect on that date.
(4) The respondent is disqualified from being registered as a practitioner in the health profession for a period of 18 months commencing on 2 August 2013.
(5) Direct the National Health Practitioner Board to record in the National Register kept by that Board the fact that the Court would have cancelled the respondent's registration had she still been registered as a health practitioner on 2 August 2013.
(6) No order as to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
MEDICAL PROFESSION - professional misconduct - where doctor prescribed drugs of addiction and restricted substances to de facto partner, a drug-dependent person - where doctor failed to maintain records of prescriptions and consultations and services - where doctor no longer registered as a medical practitioner at time protective orders made - whether Tribunal failed properly to have regard to objective of protecting health and safety of public when making protective orders - Health Practitioner Regulation National Law (NSW) ss 3(2), 3A and 4 - objective requires denunciation of serious misconduct - whether doctor should have been disqualified from being registered - effect of disqualification order on reapplication for registration - Health Practitioner Regulation National Law (NSW) ss 149C(4)(b) and 163B and Pt 7
COSTS - power of Court to order costs in proceedings under Health Practitioner Regulation National Law (NSW) - general rule that costs of proceedings before Medical Tribunal follow the event - where appeal hearing necessary irrespective of formal opposition by doctor - where order sought seemingly based on wrong view of operation of the National Law
[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.
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AGLC
Health Care Complaints Commission v Do [2014] NSWCA 307
Case
[2014] NSWCA 307
Decision Date
CaseChat Overview and Summary
The Health Care Complaints Commission appealed to the Court of Appeal of New South Wales against orders made by the Medical Tribunal concerning Dr. Do. The dispute arose from Dr. Do's professional misconduct, which included prescribing drugs of addiction and restricted substances to her de facto partner, who was a drug-dependent person, and failing to maintain adequate records of consultations and prescriptions. At the time the protective orders were made by the Tribunal, Dr. Do was no longer registered as a medical practitioner.
The primary legal issues before the Court of Appeal were whether the Medical Tribunal had failed to properly consider the objective of protecting the health and safety of the public when making its protective orders, and whether Dr. Do should have been disqualified from being registered as a health practitioner. The Court also considered the effect of a disqualification order on a future reapplication for registration and the power of the Court to order costs in proceedings under the Health Practitioner Regulation National Law (NSW).
The Court of Appeal reasoned that the objective of protecting the public, as mandated by the National Law, requires a denunciation of serious misconduct. It found that the Tribunal had not given sufficient weight to this objective. While Dr. Do was no longer registered, the Court declared that had she still been registered on the date of the Tribunal's orders, her registration would have been cancelled. The Court further disqualified her from being registered as a health practitioner for a period of 18 months from that date, and directed the National Health Practitioner Board to record this finding. The Court allowed the appeal, set aside the Tribunal's orders, and made no order as to the costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside orders 1 to 4 made by the Medical Tribunal on 2 August 2013.
(3) Declare that if the respondent were still registered as a health practitioner as at 2 August 2013 the Court would have cancelled her registration with effect on that date.
(4) The respondent is disqualified from being registered as a practitioner in the health profession for a period of 18 months commencing on 2 August 2013.
(5) Direct the National Health Practitioner Board to record in the National Register kept by that Board the fact that the Court would have cancelled the respondent's registration had she still been registered as a health practitioner on 2 August 2013.
(6) No order as to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]