Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Rakheja (No 2) [2021] NSWCATOD 74 Hearing dates: On the papers Date of orders: 03 June 2021 Decision date: 03 June 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr G Albert, Senior Member Dr S Patel, Senior Member S Lovrovich, General Member Decision: (1) The Tribunal affirms the orders made by consent on 19 May 2021. Catchwords: HEALTH — professional registration and discipline — unsatisfactory professional conduct — disciplinary sanction — consent orders — imposition of disciplinary sanction by consent approved Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Rakheja [2020] NSWCATOD 156 Texts Cited: Nil Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) Atul Rakheja (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2020/00105236 Publication restriction: Nil REASONS FOR DECISION Background 1. On 22 December 2020 the Tribunal published its reasons in respect of the Stage 1 proceedings against the respondent: see Health Care Complaints Commission v Rakheja [2020] NSWCATOD 156. 2. A hearing date was allocated for the purpose of hearing submissions concerning the appropriate disciplinary sanction to be imposed upon the respondent in consequence of the findings in the above decision. Such hearing date was set down as 20 May 2021. 3. On 19 May 2021 the Tribunal received a request from the applicant that the hearing date be vacated and that orders by consent be made. The consent orders provided for: 1. the respondent be cautioned; 2. all other conditions upon the respondent's registration be removed; 3. each party pay their own costs of the proceedings; 4. pursuant to section 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispense with a hearing. 1. The Tribunal considered that such orders were appropriate. Accordingly the hearing fixed for 20 May 2021 was vacated and the orders as sought were made by consent. 2. The Tribunal now provides its statement of the decision given by it in respect of the complaints that have been approved or admitted in whole or in part, pursuant to section 165M(4) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), in respect of its decision to approve the consent orders reached between the parties. Findings 1. The Complaint made against the respondent contained three separate complaints. 2. Complaint One alleges that the respondent committed an assault involving an act of indecency upon a female patient. The Tribunal found that such complaint was not established. 3. Complaint Two alleges that the respondent breached conditions of his registration in that he failed to advise the Medical Council of New South Wales ("the Council") in writing at least seven days before working at an aged care facility, and between 4 December 2017 and 13 September 2018 issued 88 prescriptions to female patients without a practice monitor being approved by the Council. Further, it is alleged that the respondent breached condition 2 imposed upon his registration by failing to comply with sections 1 to 16 of the Council's practice monitor policy while prescribing in the period 18 July 2018 to 8 November 2018 at the aged care facility. 4. The respondent admitted the particulars contained in Complaint Two. 5. Complaint Three alleges that the respondent is guilty of professional misconduct by virtue of the particulars relied upon to support Complaints One and Two. 6. The Tribunal found that the allegations in Complaint Three had not been established. 7. Accordingly the only breach consisted of the matters referred to in Complaint Two, which was admitted by the respondent. Determination 1. The Tribunal did not regard the admitted breach as one which would impact adversely upon the registration of the respondent. Whilst the breach exists, it was explicable on the basis that it was an oversight and the prescribing was as a result of errors on the part of local pharmacies. The circumstances concerning such detail are contained in [68] to [74] of the Tribunal's reasons published on 22 December 2020. 2. The Tribunal did not consider that the breach rendered the respondent unfit to hold registration; nor did the Tribunal consider that the public required protection as a result of such breach. The Tribunal was mindful of the requirement set out in section 3A of the National Law, namely that the "protection of the health and safety of the public must be the paramount consideration" when considering whether disciplinary sanctions should be imposed in consequence of a breach of the expected standards of a medical practitioner. 3. For the above reasons, the Tribunal considered that the proposed consent orders were appropriate in view of the Tribunal's findings in the Stage 1 proceedings. For these reasons the orders, proposed by consent, were made. Orders 1. The Tribunal affirms the orders made by consent on 19 May 2021. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2021