Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Currie v Medical Council of New South Wales [2021] NSWCATOD 121 Hearing dates: 5 August 2021 Date of orders: 2 September 2021 Decision date: 02 September 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: (1) The application for a stay of Condition 2 of the reasons of the Medical Council is refused. (2) Pursuant to cl 1 to Schedule 5D of the Health Practitioner Health Practitioner Regulation National Law (NSW), publication of the name and address of any current or former patient of Dr Currie's referred to in these reasons for decision or the material filed with the Tribunal is prohibited. (3) The paragraphs of these written reasons marked [NOT FOR PUBLICATION] are not to be published except to the parties. Catchwords: PROFESSIONS AND TRADES – health practitioner, registered medical practitioner – application for a stay pending the hearing of an appeal on a point of law – non-publication order in respect of practitioner refused Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Kirby v Dental Council of NSW [2020] NSWCA 91 Lee v Health Care Complaints Commission [2012] NSWCA 80 Medical Council of New South Wales v Lee [2017] NSWCA 282 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Segal v Medical Council of New South Wales [2020] NSWCATOD 86 Steel v Medical Council of NSW [2020] NSWCATOD 77 Texts Cited: Sexual Boundaries Guidelines: Medical Board of Australia, Guidelines – Sexual boundaries in the doctor-patient relationship, December 2018 Category: Principal judgment Parties: Dr Carl Currie (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: S Beckett (Appellant) A Petrie (Respondent) Solicitors: Avant Law (Appellant) Health Professional Councils Authority File Number(s): 2021/00199860 Publication restriction: 1. Pursuant to cl 1 to Schedule 5D of the Health Practitioner Health Practitioner Regulation National Law (NSW), publication of the name and address of any current or former patient of Dr Currie's referred to in these reasons for decision or the material filed with the Tribunal is prohibited. 2. The paragraphs of these written reasons marked [NOT FOR PUBLICATION] are not to be published except to the parties. REASONS FOR DECISION Overview 1. These proceedings are about the risk to people's health and safety from medical practitioners who have emotional or sexual relationships with people who are, or who become, their patients. 2. Following a meeting, the Medical Council of New South Wales placed several conditions on Dr Currie's registration as a health practitioner. He has appealed to the NSW Civil and Administrative Tribunal (NCAT) from the second condition. That condition is that, apart from emergency medical services, he is not to see any female patients. These proceedings respond to Dr Currie's application for a "stay" of that condition until the appeal is heard. If the stay is granted, Dr Currie will be able to treat female patients up until the time NCAT determines the appeal. He will continue to be subject to the other conditions the Medical Council placed on his registration including that he not treat or prescribe to himself, his partner, immediate family members, relatives and their partners. The Medical Council also made Dr Currie's registration subject to a "category C" supervision condition and an audit condition. 3. Condition 2 is that Dr Currie is "not to consult examine, treat, prescribe to, or perform any procedures on any female". That condition prevents Dr Currie from treating more than 50% of his patients, many of whom are seriously ill or elderly. He says there are limited alternative general practitioner's in the area. The Council opposes a stay of that condition pending the determination of the appeal. 4. The issue, expressed broadly, is whether Dr Currie has discharged the onus of establishing that a stay of condition 2 should be granted. That involves determining whether there would be any point to the appeal if a stay is not granted; assessing the strength of the appeal and deciding where the balance of convenience lies. 5. These issues must be determined having regard to the objective and guiding principle that the protection of the health and safety of the public is the paramount consideration: Health Practitioner Regulation National Law (NSW) (National Law), s 3A. The issues must also be determined keeping in mind the objectives and guiding principles. One objective of the national registration and accreditation scheme is "to facilitate access to services provided by health practitioners in accordance with the public interest": National Law, s 3(2)(e). One of the guiding principles is that "restrictions . . . are to be imposed . . . only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3(3)(c). Background 1. Dr Currie is a 69 year old general practitioner who has conducted a sole practice in Casino, a regional town in NSW, for 22 years. Casino has a population of about 10,000 people and is serviced by approximately ten general practitioners. It is 30 kilometres from Lismore, a larger regional centre. 2. Dr Currie lives with his wife and son who is in high school. He also has a son with another woman, Patient A. Dr Currie and Patient A were in a relationship from 2004 until September or October 2005. His son was born in 2006, after the relationship with Patient A had ended. Dr Currie met Patient A when attending a social function at the home of another patient, Patient B. Patient B was employed by Dr Currie on a casual basis. Patient A is the sister of Patient B's partner, Patient C. At the time, both Patient B and Patient C were patients of Dr Currie. Patient C remained a patient until 2020. Patient A was not a patient at the time the relationship commenced, however she became Dr Currie's patient in April or May 2005. Dr Currie has treated his son from this relationship since he was a baby. 3. Many years later, Dr Currie became emotionally involved with a patient, Patient D. In October 2020, Dr Currie told Patient D's husband that he was having a sexual relationship with his wife. Patient E complained to the Health Care Complaints Commission (HCCC). Patient E was also a patient of Dr Currie's at the time. Dr Currie admits the relationship although he says that it involved only hugging and kissing. As a result of the complaint by Patient E, the Medical Council convened a meeting under s 150 of the National Law in January 2021. Patient D was still a patient of Dr Currie's at the time of that meeting, but he undertook to refer her to another doctor. The Council did not suspend Dr Currie or place conditions on his registration at that time. The complaint was referred to the HCCC for investigation. 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. On 15 June 2021, the Medical Council considered Dr Currie's responses to the HCCC's investigation and resolved to convene a second meeting under s 150 of the National Law. That meeting took place on 30 June 2021. The reason for the urgency was that Dr Currie had disclosed that he had been seeing Patient A as a patient since 2005. They were in a sexual relationship, and later a personal relationship, during that time. In June 2021, at the time of the second s 150 meeting before the Medical Council, Patient A's current partner and another of her children were also Dr Currie's patients. Dr Currie says he sees Patient A socially and tries to be a good father to his son. Council's powers under s 150 of the National Law 1. On 30 June 2021, the Medical Council conducted a meeting under s 150 of the National Law. Relevantly to these proceedings, that section provides that: Suspension or conditions of registration to protect public [NSW] A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or . . . 1. We note that s 150 is expressed in the alternative. Before suspending registration or imposing conditions, the Council needs to be satisfied either that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest. Of course, the Council may be satisfied that both limbs are fulfilled. Brereton JA articulated the Tribunal's task under s 150 in Kirby v Dental Council of NSW [2020] NSWCA 91 at [15]. The issue for the Council "is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public." The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or in the public interest. (Emphasis added.) The Tribunal's power to stay the condition 1. The Tribunal has power to make an order staying a condition on Dr Currie's registration until the appeal has been finalised. Section 165L(2) of the National Law gives the Tribunal that power: The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. 1. The substantive appeal is under s 159B(1) of the National Law. That provision states that: A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Legal principles relevant to the stay application 1. The National Law does not specify the factors to be considered in determining whether the power to stay the operation of a decision under appeal should be exercised. The Tribunal has summarised relevant matters for consideration both in the context of proceedings under the National Law and more generally. 2. In Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43]- [68], the Tribunal set out the legal principles relevant to a stay application in this context. The salient principles can be summarised as follows: 1. the power to grant or refuse a stay is discretionary; 2. the onus of establishing a proper basis for the stay is on the applicant for the stay; 3. the Tribunal should assess the strength of the proposed appeal - in particular whether the appellant has an arguable case; 4. a stay may be granted on terms that are fair to all parties – this may involve weighing the balance of convenience and the competing rights of the parties. Relevant factors include: whether the appeal will be rendered nugatory if a stay is not granted, the prejudice to the parties, and whether the hearing can be expedited. 1. In Steel v Medical Council of NSW [2020] NSWCATOD 77 at [115], Boland ADCJ discussed the evaluative task of the Medical Council in s 150 proceedings and found that: I am satisfied that the task with which delegates are entrusted under s 150(1) is an "evaluative" risk assessment based on the evidence before them which must be focussed entirely on whether they are satisfied it is appropriate to protect the public or otherwise in the public interest to suspend or impose conditions on a practitioner's registration. 1. These principles are essentially the same as the those articulated by Wright J in the context of the stay power in s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). His Honour summarised those principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9]: (citations omitted): (1) Generally, a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour – s 43(2) and (3) of the Act. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order. (3) The mere lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal – s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require. Medical Council's second meeting and decision to impose conditions 1. The Council's overall conclusion after the second meeting was that Dr Currie's understanding of the nature and significance of boundary issues was very limited. His recent relationship with Patient D, who was his patient at the time, was considered to be a serious boundary violation. The Sexual Boundaries Guidelines: Medical Board of Australia, Guidelines – Sexual boundaries in the doctor-patient relationship, December 2018 explain that: Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons… 1. The reasons given for the view that breaching sexual boundaries is always unethical include: the power imbalance between doctors and patients; the trust that patients place in doctors; the physical and emotional harm that may be caused; and the erosion of public confidence in doctors if people are deterred from seeking medical care. The objective seriousness of the conduct will depend on the type of breach. In this case, the conduct was "engaging . . . in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship": Sexual Boundaries Guidelines: 3.1. 2. Dr Currie told the Council that he has treated and continues to treat family members including his wife, both his sons, Patient A, her partner and her family. He has also prescribed medication for himself on occasions. 3. Patient A was not a patient of Dr Currie's in 2004 when the relationship commenced. However, she became a patient when they were still in a sexual relationship. The Council considered that the relationship arguably infringed the Sexual Boundaries Guidelines on maintaining sexual boundaries with an individual who is close to a patient. Patient A was the sister of one of Dr Currie's patients, Patient C. The Sexual Boundaries Guidelines counsel against breaching sexual boundaries with an individual who is not a patient, but who is "close to" a patient such as a parent, spouse, carer, guardian or family member". There is no need for us to determine in these proceedings whether Patient A fell within that category. 4. The Council was concerned about Dr Currie's lack of insight and understanding. In 2002, following a complaint the Medical Council wrote to him enclosing the relevant guidelines about treating family members. He told the Medical Council that he is aware of those standards and recommendations. Nevertheless, he feels he can remain objective and provided proper care. He also said that his family members have the right to choose to consult him if they wish. The Council summarised their concerns about Dr Currie's limited insight and understanding in the following paragraphs of the decision: Dr Currie says he understands the theory behind the guidelines about treating family, but does not put it into practice, as he feels he can remain objective and provide proper care despite a close family or personal connection. He also feels his family have the right to choose to consult him if they wish. His views in this regard have persisted despite advice from the Medical Board and his knowledge of the views of his peers. Overall, Dr Currie's understanding of the nature and significance of boundary issues was very limited. He understands that his relationship with [Patient D] was a serious boundary violation, but he was reluctant to relinquish her care and stated in November 2020 that he felt he could comfortably continue a clinical professional relationship with her. Dr Currie did not appreciate that his relationship with [Patient A] gave rise to any boundary issues. In May 2021 he wrote to the Commission that he has a close connection to [Patient A] and her family, "but I do not believe there is anything untoward in my relationship with these people and it is hard for me to find them the subject of scrutiny like this when they have done nothing to bring it about". Dr Currie was reluctant to provide detailed information to the Commission, although he did answer questions in a rudimentary fashion. He explained his reluctance as being related to the intrusive nature of the questions, apparently without understanding his legal or indeed ethical obligations in this regard. Dr Currie has significant difficulty in separating his personal and social life from his professional life and the delegates considered his approach to the Commission was another aspect of Dr Currie's lack of insight rather than a deliberate attempt to mislead. The delegates consider that Dr Currie's acknowledged boundary violation with his former patient, [Patient D], a history of other possible boundary violations and his lack of understanding and insight into boundary issues generally, combine to give rise to a significant risk to the health, safety and wellbeing of the public. 1. The Council did not consider it necessary to consider suspending his registration, but decided to impose conditions for the following reasons: First, to ensure that inappropriate sexual or emotional relationships with patients do not occur, Dr Currie should not treat any female patients. To ensure that appropriate boundaries are enforced more generally, he should not treat family members nor should he prescribe medication for himself. As the mother of his son, Dr Currie regards [Patient A] as a member of his extended family, and the delegates consider Dr Currie should not provide clinical care or treatment to [Patient A] and her current partner. The delegates also recommend that Dr Currie is mindful of boundary issues in relation to the treatment of close friends. In addition, Dr Currie should be subject to Category C supervision. He should meet with his supervisor on a fortnightly basis and the supervisor should provide monthly reports to the Council. His supervisor should not be a close friend and should be a specialist general practitioner. At each supervision meeting Dr Currie and his supervisor should discuss professional ethics, boundary issues and maintaining professional boundaries and issues around the separation between professional and personal/social life. He should also submit to a random audit of his medical records to allow monitoring of these conditions. Consideration Would there be any point to the appeal if a stay is not granted? 1. There is no reference in s 165L(2) of the National Law to a stay being necessary "to secure the effectiveness of the hearing". Nevertheless, a stay should generally be granted if there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted. 2. Dr Currie submits that the appeal will be rendered nugatory if a stay is not granted. The reasons for that contention are that: some of his patients are unlikely to return to consult him if they are forced to go elsewhere; his reputation will be adversely affected; and he will not be able to recover the lost income. 3. Dr Currie will undoubtedly suffer financial loss and reputational damage for which he will not be compensated if the appeal is successful. However, that does not rendering the appeal nugatory. The adverse effects on Dr Currie and his patients may be taken into account when determining where the balance of convenience lies. Strength of the appeal 1. A relevant principle when determining whether to exercise the discretion to grant a stay is the strength of the appeal and, in particular, whether Dr Currie has an arguable case. It is not my role in the context of these proceedings to determine whether Dr Currie would succeed on appeal. 2. The grounds of appeal, in summary, are that the Council: 1. erred in their application of s 150 of the National Law and failed to determine the correct legal approach to the purpose and application of s 150 within the framework of the co-regulatory system in NSW; 2. misdirected themselves in an inquiry under s 150 of the National Law in imposing condition 2; 3. imposed condition 2 in circumstances where it was legally unreasonable generally and/or disproportionate; 4. erred in determining that condition 2 was either in the public interest, or was an appropriate protection of the health and safety of the public generally or any person in particular, as the condition is unreasonably restrictive and not in direct response to the issues before them or directed towards an identified risk to public health and safety or public interest. 1. Dr Currie foreshadowed that if the appeal goes ahead, he will seek to amend these grounds of appeal. Nevertheless, we must determine the strength of the appeal on the basis of the grounds in the Notice of Appeal as we understand them and the oral submissions. Of the four grounds of appeal the only one that is an appeal "with respect to a point of law" is ground 3: Medical Council of New South Wales v Lee [2017] NSWCA 282 at [98] – [113] (Sackville J, Beazley P and Basten JA agreeing). We will also consider a ground of appeal argued orally at the hearing – that the Council failed to take into account mandatory relevant considerations. 2. The third ground of appeal is that the Council's decision to impose condition 2 was legally unreasonable generally and/or disproportionate. Dr Currie submitted that condition 2 was directed to the risk that he would commence a new emotional or sexual relationship with a female patient whereas condition 3 was directed to preventing him from treating "himself, his partner, immediate family members, relatives and their partners". 3. Dr Currie's evidence to the Tribunal was that the relationship with Patient A commenced in 2004, but she did not become his patient until April 2005. The fact that the sexual relationship preceded the relationship of doctor/patient was said to be significant. Unlike the situation with Patient D, Dr Currie did not enter into a relationship with Patient A at a time when she was his patient. Treating Patient A and their son was said to be covered by condition 3 which prohibits Dr Currie from treating "immediate family members" and "relatives". If that is correct, the only basis for imposing condition 2 is a single instance of Dr Currie entering into a sexual relationship with Patient D while she was his patient. 4. Dr Currie submits that there is no evidence of a risk that he is likely to engage in a sexual or emotional relationship with any of his other female patients. The relationship with Patient D was the only occasion on which Dr Currie has commenced such a relationship and any risk of him doing so again has been ameliorated by the cessation of the relationship, the cessation of the doctor/patient relationship and the imposition of supervision and audit conditions. 5. Dr Currie submitted that the decision was manifestly unreasonable. It fell outside the range of decisional freedom permitted by the terms of s 150 of the National Law. 6. In addition, Dr Currie submits that condition 2 is too wide because it captures female babies and girls under the age of 18. It also captures the very elderly and frail. The condition was said to be more suited to a practitioner who has engaged in sexual activity with a patient in his clinic. Overall, preventing Dr Currie from consulting with any female patient is legally unreasonable. 7. The Council submits that it is clear from the s 150 decision that the basis for imposing condition 2 was, as the Council stated, "to ensure that inappropriate sexual or emotional relationships with patients do not occur". It is not apparent, as Dr Currie contends, that condition 2 was limited to concerns about his relationship with Patient D. The Council also emphasised that Patient A continued as a patient of Dr Currie after the relationship ended in circumstances where they were co-parenting their child and Patient A was receiving child support from him. According to the Council, condition 2 also relates to Dr Currie's care and treatment of his wife, his mother and any other female family members. 8. I repeat here what I said about legal unreasonableness in Sutherland v Medical Council of NSW [2020] NSWCATOD 97 at [30] – [31]. Dr Sutherland's appeal with respect to a point of law is the so-called legal unreasonableness ground. In summarised the relevant principles relying in particular on the High Court authorities of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26] – [30] and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], [135]. In formulating the legal unreasonableness ground of appeal, Dr Sutherland did not identify a specific jurisdictional error. Rather, he focused on what Bromwich J called an "outcome focused" conclusion. As I understand it, his appeal on a point of law is on the ground that the decision to suspend his registration is outside the range of lawful outcomes. 1. In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [134 Bromwich J (White J agreeing), stated that there is an area of "decisional freedom" where "reasonable minds might differ as to the correct decision or outcome". It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable. Bromwich J went on to state that "in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power." In this case, that provision is s 150 of the National Law. The Council must be satisfied that it is appropriate to impose the condition "for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest". 2. The way Bromwich J explained the legal unreasonableness ground at [136] captures Dr Currie's submission on this ground: . . . an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes. 1. This ground of appeal is an appeal "with respect to a point of law". As to its merits, this is not a case of being unable to comprehend from the reasons how the decision was arrived at. The Medical Council clearly stated that the basis for imposing condition 2 was "to ensure that inappropriate sexual or emotional relationships with patients do not occur". There were two instances of Dr Currie engaging in such a relationship. 2. The first was with Patient A who became his patient after they commenced a sexual relationship in 2004. This is arguably a relatively minor breach of the Sexual Boundaries Guidelines. The breach of the Sexual Boundaries Guidelines in relation to Patient D is much more serious. Dr Currie acknowledged that his relationship with Patient D was a mistake and accepted responsibility for his actions. Despite that admission, the Medical Council was justifiably concerned about Dr Currie's lack of insight and understanding. The Council must have considered, on the basis of that relationship, that there was a risk that Dr Currie would initiate an inappropriate sexual or emotional relationship with a female patient. The Council must also have considered that the degree of risk was not significantly mitigated through the imposition of other conditions on Dr Currie's registration. 3. Whether or not it was necessary to impose condition 2 is a question on which reasonable minds may differ. Dr Currie admitted that the relationship with relationship with Patient D was a mistake and verbally accepted responsibility for his actions. 4. [NOT FOR PUBLICATION] 5. Dr Currie is also subject to other conditions including a supervision condition. Condition 2 is very broad, covering all of Dr Currie's female patients. The fact that Dr Currie initiated the relationship with Patient D when she was his patient, and in the circumstances described in the confidential parts of these reasons, are also relevant. Overall, we consider that this ground of appeal has some prospects of success. 6. Another ground of appeal put at the hearing, is that the Council erred in the application of s 150 of the National Law and failed to take into account three mandatory considerations. When exercising a discretion as to whether to suspend a health practitioner or impose conditions on registration, a decision maker must take into account mandatory considerations. A mandatory consideration is a consideration that he or she is "bound to take into account in making that decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. Conversely, a decision maker must not take into account forbidden considerations. If the decision maker does either of those things, the decision will be invalid. 7. According to Dr Currie, the various objects and principles of the National Law, including those in s 3(2)(e), s 3(3)(c) and s 3A, are mandatory relevant considerations because of s 4: An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. 1. No authority was cited for the proposition that objects and principles in legislation have the status of mandatory relevant considerations in the sense conveyed in Minister for Aboriginal Affairs v Peko Wallsend Ltd. In JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [199] Basten JA (Meagher JA agreeing) found that a ground of appeal that alleged that the decision maker had failed to apply the principles set out in s 8 of the Children & Young Persons (Care and Protection) Act 1998 (NSW) did not identify a question of law. These grounds of appeal have low prospects of success. Where does the balance of convenience lie? 1. The balance of convenience includes the prejudice to the parties and whether the hearing can be expedited. The hearing has been expedited. It is set down in just over two months' time, on 25 October 2021. 2. In his statement, Dr Currie referred to the prejudice he would experience if the condition remains until the hearing. As to the effect on his patients, Dr Currie evidence was that approximately 51% of his patients are females and in the fortnight prior to 5 July 2021 he saw 189 female patients and 23 children. He also cared for 157 male patients. Condition 2 prevents him from using telehealth facilities to treat female patients. His income will be dramatically affected if he is unable to see over half of his patients, his female patients may be denied services because of the limited availability of GP services in Casino and they will not receive continuity of care. He also considers the Covid-19 pandemic to be a relevant factor. 3. The Medical Council takes issue with Dr Currie's overly broad interpretation of condition 2. That condition does not prevent him from treating male children in the company the child's mother or treating any other male in the company of a female. The Medical Council submits that while condition 2 may cause Dr Currie financial and other detriments, it was imposed to protect patients. The fact that it is also incidentally punitive, does not mean that it is inappropriate: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]. 4. The Medical Council submits that the decision gives proper regard to: the location of Dr Currie's practice; the access and availability of medical services for his community and patients; and the impact that condition 2 would have on Dr Currie and his patients. The Council delegates asked several questions about his practice and the availability of other GPs in the town. 5. Condition 2 will have a dramatic effect on Dr Currie's income and the continuity of care for his patients. However, those considerations are subject to the requirements of s 150 of the National Law and the fact that the paramount consideration of protecting the health and safety of the public. Conclusion 1. The factors to be considered in this stay application are finely balanced. The refusal of the stay application will not render the appeal nugatory if Dr Currie is successful. The appeal has been expedited and the paramount consideration is protecting the health and safety of the public. Based on Dr Currie's previous conduct and his responses at the s 150 hearing, the Council was satisfied that Dr Currie's understanding of the nature and significance of boundary issues was very limited. It was Council's view that there was an appreciable risk that Dr J would initiate an inappropriate sexual or emotional relationship with a female patient. There was evidence to support that conclusion. Against those factors, Condition 2 is very broad, there is one arguable ground of appeal and Dr Currie's practice and reputation will be seriously impacted by condition 2. In all the circumstances, I exercise the discretion to refuse a stay of condition 2 pending the hearing of this appeal. Application for non-publication order 1. At the hearing, Dr Currie applied for an order that his name not be published and that there be "no disclosure of the name of any person (whether or not a party to proceedings in the Tribunal) or any material tending to identify any patient or person". That order was sought on an interim basis until the appeal proceedings are determined. In his affidavit dated 8 July 2021, Dr Currie set out the reasons for seeking a non-publication order of his name as well as any material tending to identify any patient or person. 2. The Medical Council consents to an order that the names of Dr Currie's family members and patients not be disclosed. The Council does not consent to a non-publication order in relation to Dr Currie's name or an order preventing disclosure of any material tending to identify any patient or person. 3. At the conclusion of the hearing I directed the parties to provide submissions on the following question: if a non-publication order is not made, should the Tribunal anonymise the decision pending any appeal or the lapsing of any appeal period. Dr Currie did not address this question directly in his written submissions. Rather, he expanded the scope of the application for a non-publication order to include any mention of the town of Casino, NSW. The following order was sought: 1. That the practitioner's name not be published. 2. That there be no disclosure of the name of any person (whether or not a party to proceedings in the Tribunal) or any material tending to identify such patient or person. 3. That the practitioner and the patients referred to in the attached schedule be referred to by the pseudonyms listed there (attached). 4. That Dr Currie's (unnamed) 14 year old son of Dr Currie and Ms Currie be referred to as H. 5. That the town of Casino be referred to as Regional NSW Town A. 6. That this order apply until further order. 1. The Tribunal has power to make non-publication orders under Clause 7(1) of Schedule 5D of the National Law: The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. 1. The publication of written reasons for decision is governed by s 165M of the National Law: As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to— (a) the parties; and (b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party). (2) The statement of a decision must— (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision. (3) The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit. (4) Unless the Tribunal has ordered otherwise, the Tribunal is to make publicly available a statement of a decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part. (5) This section applies to a decision on an inquiry that is conducted into a complaint referred to the Tribunal under this Law where the subject-matter of the complaint is admitted in writing to the Tribunal. 1. Under s 165M(1) the Tribunal must provide a written statement of reasons to the parties and the relevant Council "where a decision is make on an inquiry or on an appeal". The requirement to make the written statement of reasons publicly available, unless the Tribunal orders otherwise, only applies if the decision is "in respect of a complaint that has been proved or admitted in whole or in part". The HCCC has not made a complaint against Dr Currie. 2. Dr Currie submitted that the closed nature of meetings before the Medical Council under s 150 of the National Law, would be defeated if on appeal to the Tribunal on a point of law under s 159B all the material before the Medical Council would be made public. If such material was made public then it may be that a medical practitioner would be reluctant to exercise his or her statutory right of appeal on a point of law. 3. There is some merit to this submission. Proceedings before the Council are not open to the public. The only information that is publicly available is the practice conditions imposed on Dr Currie's registration. They are recorded in the public register maintained by the Australian Health Practitioner Regulation Agency (AHPRA). In addition, Council does not need to decide whether the allegations are proven. The issue is whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public. 4. However, there is a good reason in this case to make the written reasons publicly available in accordance with NCAT's usual practice of open justice. Apart from some minor matters, Dr Currie has admitted the factual basis of the complaints against him. This is not a case where serious allegations are denied. The issues relate almost exclusively to the degree of risk Dr Currie poses to patients. We will now consider the submission that identifying Dr Currie will lead to the identification of other people who may be adversely affected by the publication of certain information. 5. [NOT FOR PUBLICATION]. 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION]. 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION ] 10. For the confidential reasons I have given, I refuse Dr Currie's application that his name not be published. I also refuse to make the other non-publication he seeks. For the reasons given by the Council it would be inappropriate for the Tribunal to anonymise the publication of the decision pending any appeal or lapsing of any appeal period. The hearing was conducted in public. To anonymise the decision, notwithstanding the Tribunal's decision to publish Dr Currie's name would in effect be to stay the publication decision without a stay application being brought by Dr Currie and being properly dealt with. Orders 1. The application for a stay of Condition 2 of the reasons of the Medical Council is refused. 2. Pursuant to cl 1 to Schedule 5D of the Health Practitioner Health Practitioner Regulation National Law (NSW), publication of the name and address of any current or former patient of Dr Currie's referred to in these reasons for decision or the material filed with the Tribunal is prohibited. 3. The paragraphs of these written reasons marked [NOT FOR PUBLICATION] are not to be published except to the parties. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 02 September 2021