Health Care Complaints Commission v FCE (No 3) [2021] NSWCATOD 220

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v FCE (No 3) [2021] NSWCATOD 220 Hearing dates: On the papers Date of orders: 24 December 2021 Decision date: 24 December 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Decision: I make the following orders (1) The non-publication order made in Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 is revoked. (2) 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. (3) I ask the Registrar to arrange for a notation to be made on the Caselaw publication of Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 that by reason of this Decision [32] and [35] of the reasons in that decision are amended so that they will now read as follows "32 In terms of future patients, I am informed that if a non-publication order is made, AHPRA will not include any link to any anonymized decisions in its electronic records concerning the respondent which are accessible to the public and would therefore be accessible to any potential patient or employer of the respondent. However, the extensive practice conditions which have been imposed on the respondent's registration in consequence of orders made in the substantive decision, and the fact that the registration has been suspended for six months will all be publicly accessible. Whether private health conditions 7 to 17 including the comprehensive regime accompanying the respondent's testing for alcohol will be published will be a matter for the National Board in the exercise of its discretion under section 226 of the National Law. … 35 In all the circumstances any person or entity making enquiries about the registration of the respondent as a dental practitioner will have access to publicly available information concerning the status of the registration and, in the foreseeable future, that the respondent's registration had been suspended for six months and that she was required to work under supervision. In circumstances where none of the causes of the respondent's condition arose from any particular conduct of the respondent and whether non-publication of them will not adversely affect the interest of the public will be a matter for the exercise of the discretion of the National Board under section 226 of the National Law. The same conclusion applies to publication on the public register of the requirement that whilst registered as a dental practitioner the respondent is required to abstain from alcohol, to engage in a comprehensive regime of alcohol testing and to undertake treatment." Catchwords: OCCUPATIONS — Dentists — Misconduct and discipline — reasons for non-publication order varied to reflect discretion in National Board to determine whether health conditions should be available on public register – principles – non- publication order affirmed Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 35, 225, 226 Civil and Administrative Tribunal Act 2013 (NSW) s 64(1)(c), (3) Cases Cited: Health Care Complaints Commission v FCE [2021] NSWCATOD 202 Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 Texts Cited: Dental Council of NSW, 'Conditions Handbook' (September 2016) Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) FCE (Respondent) Representation: 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.