Jan v Health Care Complaints Commission [2021] NSWCATOD 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jan v Health Care Complaints Commission [2021] NSWCATOD 141 Hearing dates: 16 July 2021 Date of orders: 8 September 2021 Decision date: 08 September 2021 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member Dr M Stimpson, Senior Member Dr B White, Senior Member C Berglund, General Member Decision: (1) Pursuant to s 163B(1) of the National Law, the applicant may be registered as a dentist in accordance with Part 7 if the conditions for the making of a reinstatement order as defined in s 163B(3) are satisfied; (2) Pursuant to s 163B(4) of the National Law, the following conditions are imposed on the applicant's registration in the event that a reinstatement order is made: (a) the applicant is to practise only in a group practice that is not owned by the applicant; (b) the applicant is to practise under Category A supervision in accordance with the Dental Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body as follows: (i) the applicant is not to practise until a supervisor has been approved by the Dental Council of NSW; (ii) supervision is to occur for a period of 2 years, and for any further period determined by the Dental Council of NSW; (iii) the Dental Council of NSW is authorised to provide proposed and approved supervisors with a copy of the full conditions, and any relevant decision or report; (c) the applicant is to submit to an audit of his practice, by a random selection of his records by a person or persons nominated by the Dental Council of NSW as follows: (i) the audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council; (ii) the auditor(s) is to assess his compliance with paragraph 8.4 on Health Records in the Dental Board of Australia's Code of Conduct; (iii) the audit(s) is to confirm compliance with his conditions of practice and any relevant standards, codes and guidelines; (d) The appropriate review body for the purpose of a review under sections 163 to 163C of the National Law is the Dental Council of NSW when the respondent has a principal place of practice in New South Wales. (e) sections 125 to 127 of the National Law are to apply should the applicant's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board; (f) the applicant is to continue to attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The applicant: (i) is to authorise the treating practitioner to inform the Dental Council of NSW of any of the following: (A) failure to attend for treatment; (B) termination of treatment; or (C) a significant change in health status (including a significant temporary change); (ii) must provide the Council with the professional details of the treating psychologist; (iii) must provide evidence to the Council of his attendance with the treating psychologist within 1 month from recommencement of practice; (3) the applicant is to pay the costs of the respondent as agreed or assessed. Catchwords: TRADES AND PROFESSIONS –– reinstatement of health practitioner under Health Practitioner Regulation National Law COSTS — application of compensatory principle where applicant practitioner is successful in application for review of cancellation order Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3, 3A, 55, 116, 163, 163A, 163B, 163C, Sch 5D, cl 13 Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71 Jan v Health Care Complaints Commission [2020] NSWCATOD 75 Jan v Health Care Complaints Commission [2021] NSWSC 350 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Texts Cited: None cited Category: Principal judgment Parties: Rey Jan (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: A Hourigan (Applicant) A Britt (Respondent)