Health Care Complaints Commission v FCE [2021] NSWCATOD 202

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v FCE [2021] NSWCATOD 202 Hearing dates: 24 and 25 November 2021 Date of orders: 8 December 2021 Decision date: 08 December 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Dr K Campbell, Senior Member Dr A Kingon, Senior Member J Houen, General Member Decision: Consequent upon the findings which we have made we make the following orders Reprimand 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent. Suspension 2. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of 6 months from the date of this decision. Practice conditions 3. Under section 149A(1) of the Health Practitioner Regulation National Law , the Tribunal directs that the following Conditions be imposed on the respondent's registration: (1) Not to undertake solo dental practice. (2) To forward evidence to the Dental Council of NSW within fourteen (14) days of returning to practice that she has provided a copy of her full conditions to the Principal of any practice in which she is practicing. (3) To obtain Dental Council of NSW approval before changing the nature or place of her practice. (4) Within fourteen (14) days of a change in the nature or place of her practice, she is to forward evidence to the Dental Council of NSW that she has provided a copy of her practice conditions to the Principal of the practice/s in which she works. (5) To only be employed as a dental practitioner in circumstances where the employer has agreed to notify the Dental Council of NSW of any breach of the conditions or unsafe practice and exchange information with the Council related to compliance with the conditions. (6) To practise under Category B 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. (a) Not to practise until a supervisor has been approved by the Dental Council of NSW. (b) At each meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on workload management. (c) To authorise the Dental Council of NSW to provide proposed and approved supervisors with a copy of full conditions, and any relevant decision or report. (7) To abstain completely from the consumption of alcohol. (8) To comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: breath testing for alcohol (as varied from time to time) and undergo regular breath testing. (9) Upon commencement of practising as a Dental Practitioner, to comply with the Dental Council of NSW Alcohol screening policy and Participant procedure: EtG screening (as varied from time to time) and attend for random EtG screening (urine). (10) To authorise the testing facility to forward all the results of EtG to: (a) the treating practitioners; and (b) the Council. (11) To attend for treatment by a Psychologist of her choosing. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Dental Council of NSW 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) must provide the Council with the professional details of the treating practitioner; and (c) must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice. (12) To attend for treatment by a qualified drug and alcohol specialist (Psychiatrist or Physician) of her choosing. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Dental Council of NSW 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) must provide the Council with the professional details of the treating practitioner; and (c) must provide evidence to the Council of her attendance with the treating practitioner within fourteen (14) days of returning to practice (13) The practitioner is to expressly authorise the treating practitioners referred to in Conditions 11 and 12 to communicate with each other about her treatment and condition. (14) To attend for review by a Council-directed health assessor (Psychiatrist) on a three (3) monthly basis or as otherwise directed by the Dental Council of NSW. The professional costs of the reviews undertaken pursuant to this condition will be met by the Council. (15) To authorise the Dental Council of NSW to forward copies of this decision and any subsequent reports and any other information relevant to her health and treatment to the Council-appointed practitioners, supervisor and to her treating practitioners. (16) To nominate a senior dental practitioner at all locations where the practitioner practises for approval by the Dental Council of NSW. The practitioner is to: (a) provide the approved practitioner with a copy of her health conditions; (b) authorise the approved practitioner to notify the Council immediately if there are any concerns in relation to her health or if the practitioner's health is adversely affecting her capacity to practise; and (c) the nomination must be made within fourteen (14) days of commencing practice as a Dental practitioner, or commencing at a new practice location (17) To authorise and consent to any exchange of information between the Dental Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. Review 4. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Dental Council of NSW when the respondent has a principal place of practice in NSW. 5. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Dental Board of Australia. Costs 6. The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: OCCUPATIONS – dental practitioner had impairment of Alcohol Abuse Disorder – failure to comply with practice conditions concerning alcohol testing regime – held constituted professional misconduct – finding of continued impairment – registration suspended and practice conditions imposed upon resumption of practice – costs order made. Legislation Cited: Health Practitioner Regulation National Law NSW ss 3A, 5, 139B, 139E, 144(c), 149A, 149C Cases Cited: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Do [2014] NSWCA 307 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Sun [2016] NSWCATOD 80. Texts Cited: Code of Conduct published by the Dental Board of Australia Category: Principal judgment Parties: Health Care Complaints Commission (applicant) FCE (respondent) Representation: Counsel: Dr P Dwyer (respondent) Solicitors: Health Care Complaints Commission (applicant) Meridian Lawyers (respondent) File Number(s): 2021/00025050 Publication restriction: The publication of the name of the respondent and the publication of any information, picture or other material that identifies the respondent or is likely to lead to her identification other than to the Australian Health Practitioner Regulation Agency and to the Dental Council of NSW is prohibited.