Health Care Complaints Commission v Ariyarathna [2021] NSWCATOD 154

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ariyarathna [2021] NSWCATOD 154 Hearing dates: 23 – 26 August 2021 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr G Dore, Senior Member Dr M Cox, Senior Member R Wellington, General Member Decision: (1) Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the respondent is reprimanded; (2) The conditions on the respondent's practice imposed by the Medical Council on 9 June 2020 are revoked; and (3) Pursuant to s 149A(1)(b), (d), (e) and (f) of the Health Practitioner Regulation National Law (NSW), the respondent is to practise in accordance with the Practice and Health conditions set out below: Practice Conditions 1. To obtain Medical Council approval prior to changing the nature or place of his practice. 2. Not to undertake solo medical practice. 3. Not to be the sole supervisor of any junior practitioner. 4. To practise under category C supervision in accordance with the Medical Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Clinical performance; ii. Professional staff boundaries; iii. Team work; and iv. Professional communication. (b) To authorise the Medical Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 5. To nominate an experienced medical physician to act as his professional mentor for approval by Medical Council in accordance with the Medical Council's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each mentoring meeting the practitioner is to include discussion of the following: i. Professional ethics; ii. Career progression; and iii. Any other topics of relevance. (b) To authorise the mentor to report, in an approved format, to the Medical Council every 6 months about the fact of contact, and to inform the Medical Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council to provide proposed and approved mentors with a copy of the decision that imposed these conditions. 6. To have completed between April 2019 to a date within 6 months of the imposition of these conditions at least 1 online course by an appropriate medical body concerning responsible communication incorporating the use of email and social media as well as at least 1 other online course to ensure that he has a proper knowledge of regulations and procedures regarding workplace behaviour and conduct: (a) Within 3 months of the imposition of these conditions the practitioner must provide evidence to the Medical Council with his enrolment in the abovementioned courses; (b) Within 1 month of completing the abovementioned courses, the practitioner is to provide documentary evidence to the Medical Council that he has satisfactorily completed the courses; and (c) The practitioner is to bear responsibility for any costs incurred in meeting this condition. 7. In the event that the above-mentioned courses are unavailable, the practitioner must propose to the Medical Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the imposition of these conditions. 8. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the Respondent'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. Should the respondent relocate to NSW, the Medical Council of NSW will be the relevant review body. Health Conditions 9. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating practitioner. The respondent is to: (a) authorise the treating practitioner to inform the Medical Council (or equivalent) of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) provide the Medical Council with the professional details of the treating practitioner. (4) The respondent is to pay the applicant's costs of and incidental to these proceedings pursuant to clause 13 of Schedule 5D to the Health Practitioner Regulation National Law (NSW). Catchwords: HEALTH – medical practitioners – disciplinary proceedings – practitioner infatuated with work colleague – practitioner sending numerous deceptive, insulting, belittling emails to work colleague using sham Internet details – practitioner using government emails for the purpose of sending such messages – practitioner gaining unauthorised access to private records of fellow colleague – practitioner sending abusive emails having gained access to another medical practitioner's email account to make it appear that it was the other practitioner who was forwarding the messages – practitioner obtaining a new telephone number using false details to send text messages to the mother of a work colleague under the pretext of a friend for the ulterior purpose of obtaining details of the current partner of the work colleague. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission [2017] NSWCA 186 Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Latoudis v Casey (1990) 170 CLR 534 Lee v Health Care Complaints Commission [2012] NSWCA 80 Office of Local Government v Toma [2016] NSWCATOD 21 Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Slezak, Dr Peter [2011] NSWMPSC 10 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Texts Cited: NSW Health Policy Directive, "Use and Management of Misuse of NSW Health Communication Systems" NSW Health Policy Directive, "NSW Health Code of Conduct" Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dilshan Ariyarathna (Respondent) Representation: Counsel: I Chatterjee (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2021/00050759 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of any person other than the respondent, the expert witnesses, and the referees is prohibited.