Health Care Complaints Commission v Somaey [2021] NSWCATOD 91

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Somaey [2021] NSWCATOD 91 Hearing dates: 17–19 February 2021 Date of orders: 05 July 2021 Decision date: 05 July 2021 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member Dr A Lang, Senior Member Dr E Peel, Senior Member S Lovrovich, General Member Decision: (1) The proceedings are adjourned for a directions hearing on a date fixed by the Registrar to make appropriate directions for the stage 2 hearing to determine what if any protective orders should be made against the respondent in respect of her conduct: (a) particularised in paragraph (a) of Particular 1 of Complaint Two; (b) particularised in Complaint Three so far as it relates to the conduct particularised in paragraph (m) of Particular 1 of Complaint Two and in Particular 2 of Complaint Two. (2) The proceedings so far as they concern the remaining conduct alleged against the respondent are dismissed. Catchwords: HEALTH — professional registration and discipline — complaints — whether dental practitioner has an impairment — whether practitioner failed to cooperate and adequately communicate with Council and Commission — whether practitioner failed to exercise adequate management of infection control and hygiene control in her practice — whether practitioner failed to exercise adequate dental practice management — whether any such proved constitutes unsatisfactory professional conduct or professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Evidence Act 1995 (NSW), s 140 Health Care Complaints Act 1993 (NSW), s 34A Health Practitioner Regulation Amendment Act 2010 (NSW), s 1 Health Practitioner Regulation National Law (NSW), ss 5, 139B, 139E, 144, 145B, 148E, 150, 150A, 164G Health Registration Legislation Amendment Act 2004 (NSW), s 3, Sch 1 Medical Practice Act 1992 (NSW) (repealed), s 36 Cases Cited: AHB v NSW Trustee and Guardian [2014] NSWCA 40 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Grant v HCCC [2003] NSWCA 73 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Bui [2021] NSWCATOD 77 Health Care Complaints Commission v Dr Leonard Philipiah [2012] NSWMT 14 Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Grech [2021] NSWCATOD 14 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Youssef; Health Care Complaints Commission v McArthur [2021] NSWCATOD 2 In Re A Medical Practitioner and the Medical Practice Act (Medical Tribunal (NSW), 3 September 2007, unrep) Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) Dental Board of Australia, Code of Conduct for Registered Health Practitioners (March 2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Sahar Somaey (Respondent) Representation: Counsel: C Mitchell (Applicant) J R Young (Respondent)