Health Care Complaints Commission v Ghougassian (No 2) [2021] NSWCATOD 217

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghougassian (No 2) [2021] NSWCATOD 217 Hearing dates: 10 December 2021 Date of orders: 24 December 2021 Decision date: 24 December 2021 Jurisdiction: Occupational Division Before: The Hon Cowdroy AO QC ADCJ, Principal Member Dr J Spies, Senior Member Dr S Cowap, Senior Member D Telford, General Member Decision: (1) Under section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the Tribunal reprimands the respondent. (2) 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: (a) When seeing patients outside a hospital setting, to not be the sole person on site (that is, when seeing patients the practitioner must ensure that at least a receptionist is present at his rooms/professional suites, although not necessarily in the consultation room) and: (i) advise the Medical Council of NSW (the Council) of all his practice locations within 7 days of commencing work. (ii) provide the Council with the name of his employed receptionist and be required to notify the council of any changes to this; (b) The practitioner not take photographs or video of any patients unless he: (i) obtains and documents in the clinical record written consent for the photographs or videos first; (ii) documents in the clinical record the clinical purpose for and intended use of the photographs or videos. (c) To nominate an experienced registered medical practitioner to act as his professional mentor for approval by the Council in accordance with the Council's "Compliance Policy – Mentoring" (as varied from time to time): (i) The practitioner is to be mentored for a minimum period of 12 months and as subsequently determined by the Council; (ii) The practitioner is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the practitioner is to include discussion of the issues highlighted in the Tribunal's decisions, his personal and professional development, and any personal and/or medical practice issues as they arise; (iii) The practitioner is to authorise the mentor to report, in an approved format, to the Council on a quarterly basis; (iv) The practitioner is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the practitioner, or his compliance with any conditions on his registration. (d) To provide the Medical Council of NSW within six [6] months from the date of this decision with the following: (i) A summary prepared by him of the relevant legislation and guidelines on the keeping of good medical records. This summary must describe the information to be included in a patient record; (ii) An overview of the steps he has taken to ensure that he is creating and keeping good medical records; (iii) A copy of the records of 10 patients who have attended for consultation with him since the date of this decision; (iv) The practitioner is to meet the costs of this condition. (e) The practitioner is to prepare and provide to the Council within six [6] months from the date of this decision the following: (i) The practitioner's documented protocol/policy on facilities available in the practitioner's rooms for patient privacy when undressing and redressing and how patients are informed of these facilities in his practice; (ii) The practitioner's protocol/policy on the use of chaperones in consultation and how patients are informed of this policy in his practice; (iii) The practitioner's protocol/policy for recording patients and how patients are informed of this policy in his practice; (iv) The practitioner's protocol/policy on obtaining information for the treatment and management of patients from their family members and/or friends; (v) The practitioner is to meet the costs of this condition. (3) The appropriate review body for the purpose of a review under sections 163 - 163C of the Health Practitioner Regulation National Law is the Council when the respondent has a principal place of practice in NSW. (4) 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 Medical Board of Australia. (5) The respondent is to pay the applicant's costs of these proceedings as provided by clause 13 of Schedule 5D of the Health Practitioner Regulation National Law. Catchwords: HEALTH - professional registration and discipline – imposition of disciplinary sanction following finding of unsatisfactory professional conduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Ghougassian [2021] NSWCATOD 169 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Daniel Ghougassian (Respondent) Representation: Counsel: I Chatterjee (Applicant) A Horvath SC (Respondent)