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. Reasons for decision Orders made consequent upon findings of professional misconduct and an impairment 1. In Health Care Complaints Commission v FCE [2021] NSWCATOD 202 the Tribunal differently constituted found the respondent FCE guilty of professional misconduct under the Health Practitioner Regulation National Law (NSW) (the National Law) in her practice as a dentist and found that she suffered from an impairment under that Act being an Alcohol Use Disorder. 2. Consequent upon those findings the Tribunal made a number of protective orders by which it suspended the respondent's registration for a period of six months, imposed a reprimand and made provision for a number of practice conditions to be imposed on the respondent's registration. These are "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." Non-publication order made and consideration of consequences 1. In Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203 I upheld an application by the respondent for a non-publication order to be made prohibiting the publication of her name and associated materials, which application had been supported by the applicant. I made an order to the following effect "38 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." 1. In so doing I said "36 On balance I conclude that the necessity to enhance the well-being of the respondent and to enhance her prospects of recovery constitute special, exceptional, and out of the ordinary circumstances which justify the making of the non-publication order sought by the respondent, in the context of the unlikely disadvantage to the public whether to past or prospective patients which would result from such an order." 1. In the course of considering whether to make the non-publication order which had been sought I dealt with the consequences of making such an order in terms of the ability of the public to ascertain the effect of the finding that the respondent suffered from an impairment and the circumstances pertaining to the practice conditions to enable the public to be appropriately informed about the respondent. These consequences applied to what was discoverable on searching the name of the respondent in the relevant records maintained by the Australian Health Practitioner Regulation Agency (AHPRA). I said "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 decision 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 conditions which have been imposed on the respondent's registration in consequence of orders made in the substantive decision including the comprehensive regime accompanying the respondent's testing for alcohol, and the fact that the registration has been suspended for six months will all be publicly accessible. … 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, she was required to abstain from alcohol, she was required to engage in a comprehensive regime of alcohol testing, to undertake treatment and was required to work under supervision. The only matters which will not be available on general enquiry are those which relate to the causes for the respondent's registration conditions. In circumstances where none of these causes arose from any particular conduct of the respondent, non-publication of them does not adversely affect the interest of the public in open justice as it concerns these proceedings. … 37 I ask the applicant to inform AHPRA that this decision of the Tribunal will be thwarted if a link to it is provided on its website or otherwise made available to the public concerning the respondent." Application by parties to amend observations re consequences of non-publication order 1. After publication of this later decision both parties made an application to "correct" [32] and [35] of this decision by deleting reference to those practice conditions which referred to the protocols for the testing for alcohol. They also asked that AHPRA be informed that it was my intention that those references to the requirement of the respondent to abstain from alcohol, the references to the protocols for the testing for alcohol and the treatment regime which she was required to undertake not be made available on the AHPRA website. The basis for this "correction" was material contained within the Dental Council of NSW Conditions Handbook which indicated that health conditions are generally not published on that website. That document had not been made available to me at the time that I considered the submissions of the parties, and it was never my intention that those references should not be accessible to the public. 2. The effect of the requested amendment was that only the conditions contained within numbers 1 to 6 set out in [2] above would be available on the AHPRA website, and that conditions 7 to 17 would not be disclosed to members of the public making enquiries concerning the registration of the name of the respondent on its public website. 3. Before considering the application for amendment I first refer to the statutory matrix against which the consequences of the non-publication order are to be considered. Under the National Law registers of health practitioners are to be kept by National Boards, whose functions are described in section 35. Section 225 of the National Law deals with the information to be recorded in the National Register of practitioners (public register) 225 Information to be recorded in National Register A National Register or Specialists Register must include the following information for each registered health practitioner whose name is included in the register-- (a) the practitioner's sex; (b) the suburb and postcode of the practitioner's principal place of practice; (c) the registration number or code given to the practitioner by the National Board; (d) the date on which the practitioner was first registered in the health profession in Australia, whether under this Law or a corresponding prior Act; (e) the date on which the practitioner's registration expires; (f) the type of registration held by the practitioner; (g) if the register includes divisions, the division in which the practitioner is registered; (h) if the practitioner holds specialist registration, the recognised specialty in which the practitioner is registered; (i) if the practitioner holds limited registration, the purpose for which the practitioner is registered; (j) if the practitioner has been reprimanded, the fact that the practitioner has been reprimanded; (k) if a condition has been imposed on the practitioner's registration or the National Board has entered into an undertaking with the practitioner-- (i) if section 226(1) applies, the fact that a condition has been imposed or an undertaking accepted; or (ii) otherwise, details of the condition or undertaking; (l) if the practitioner's registration is suspended, the fact that the practitioner's registration has been suspended and, if the suspension is for a specified period, the period during which the suspension applies; (m) if the practitioner's registration has been endorsed, details of the endorsement; (n) details of any qualifications relied on by the practitioner to obtain registration or to have the practitioner's registration endorsed; (o) if the practitioner has advised the National Board the practitioner fluently speaks a language other than English, details of the other language spoken; (p) any other information the National Board considers appropriate. 1. Prima facie, all of the conditions originally imposed in the substantive decision of the Tribunal are capable of being included within the public register. However, this is subject to a discretion vested in National Boards by section 226 of the Act. 226 National Board may decide not to include or to remove certain information in register (1) A National Board may decide that a condition imposed on a registered health practitioner's registration, or the details of an undertaking accepted from a registered health practitioner, because the practitioner has an impairment is not to be recorded in a National Register or Specialists Register in which the practitioner's name is included if-- (a) it is necessary to protect the practitioner's privacy; and (b) there is no overriding public interest for the condition or the details of the undertaking to be recorded. (2) A National Board may decide that information relating to a registered health practitioner is not to be recorded in a National Register or Specialists Register in which the practitioner's name is included if-- (a) the practitioner asks the Board not to include the information in the register; and (b) the Board reasonably believes the inclusion of the information in the register would present a serious risk to the health or safety of the practitioner. (3) A National Board may decide to remove information that a registered health practitioner has been reprimanded from a National Register or Specialists Register in which the practitioner's name is included if it considers it is no longer necessary or appropriate for the information to be recorded on the Register. 1. Prima facie, the National Board of Dental Practitioners has a discretion as to whether any of the conditions which have been imposed on the respondent's registration will be included on the public register. 2. Some understanding of the approach to be taken in the exercise of this discretion is contained in the Dental Council of NSW Conditions Handbook, relevant extracts from which are set out below. "1.2 Differentiating between conditions and orders ... • Conditions will generally be recorded in the public National Register, one exception being "health" conditions (see ss 225 and 226 of the Law and 2.2 Making private conditions). • Any other order (see ss 156C(2), 146B(1), 148E,and 149A(1)), such as an order requiring a practitioner to attend an education course, will not generally appear on the Register." 1. The following guidance is contained in the Handbook for the benefit of the various entities which are entitled under the National Law as it applies in New South Wales to impose conditions on the registration of health practitioners. "2.2 Making private conditions • Some conditions do not appear on the public national register. • Make it clear in your decision if you believe the National Board should not record certain conditions in the public national register, as the National Board will generally be guided by the decision makers. • Generally it is appropriate to keep conditions relating to the personal health of a practitioner private, unless there is a stronger public interest in making the conditions public. Typically in such cases, the following statement appears on the register: 'Registration is subject to conditions that relate to personal health. These conditions are not publicly available due to privacy considerations.' Note: It has been a long-standing policy not to provide third parties with details of health conditions unless special circumstances apply. If you do consider it necessary that a third party be aware of a practitioner's health conditions (almost certainly for monitoring purposes), please explain this in your decision. See also 3.3 Notifying others of conditions and/or a decision. • Be aware that while s 225 of the Law stipulates what information must be recorded on the register, s 226 allows the National Board to decide not to record certain information in the public register (including for reasons of impairment). Ultimately what information is recorded in the national register is a matter to be determined by the relevant National Board. … 3.3 Notifying other parties of conditions and/or a decision • Most conditions are recorded in the public Register. This is regardless of whether the decision that imposed the conditions is made publicly available, or whether the relevant hearing or proceedings were open to the public. "Private" or "health" conditions generally are not recorded in the public Register (see 2.2 Making private conditions). • A third party may need to be provided with a copy of your decision, or your conditions and orders, so they are suitably informed and in a position to assist the Council in its monitoring activities. Examples might be supervisors and treating practitioners. If a third party is to be provided with a copy of your decision, consider: …" Consideration 1. I have previously referred to the effect of the joint request made by the parties. They have requested that I only refer to the publication of the fact of a suspension of six months and the practice conditions numbered 1 to 6 being published on the public register. That is, all of what I shall refer to as the "health conditions" are not to be included on the public register. 2. The basis for the application as set out in a submission from the applicant dated 9 December 2021 is that the Dental Council of NSW Conditions Handbook indicated that "health conditions are unlikely to be published." I do not regard this submission as justifying acquiescence to the application of the parties. However, for reasons which I shall shortly develop, the provisions of section 226 of the National Law are relevant. 3. There must be considerable doubt about the extent of the power of this Tribunal to interfere with the functions of the National Boards contained in section 225 of the National Law. Because of the view which I take concerning the disposition of the application made by the parties I need not consider this matter further. This is because I have even greater doubt about the extent of the power of this Tribunal to interfere with the discretion which vests in the National Boards under section 226 of the National Law. My attention was not specifically directed to the nature and extent of this discretion in the course of receiving submissions from the parties. 4. The consequences of this observation is that the understanding that I set out in [32] and [35] which I have extracted above that the material contained in conditions 7 to 17 would be publicly accessible to anyone searching the name of the respondent in the public register is incorrect. Whether and to what extent this material will be publicly available will depend upon the exercise of the discretion of the National Board under section 226 of the National Law. The material in these paragraphs should be modified accordingly. 5. This raises for consideration a further consequence, in that my decision to accede to a non-publication order was based on the understanding set out above. It is now necessary to consider afresh whether a non-publication order should be made, and the terms of that order where publication of the material concerning the "health conditions" will be a matter for the exercise of discretion by the relevant National Board. It is more convenient that I set out an extract from [30] – [37] of the reasons for my decision which were the basis for the making of the non-publication order than attempt a summary "30 I proceed on the basis that in order to displace this general principle and to make a nonpublication order with respect to the name of the respondent, I must be satisfied that there is something special, exceptional, or out of the ordinary which would justify it. 31 Even though there is evidence in the substantive proceedings, provided by way of concession of the respondent that she did treat patients whilst inebriated, there is no evidence that any patient suffered any injury or that his or her treatment was compromised in any way by the conduct of the respondent. The respondent has not practised dentistry since 2019. It may be assumed, therefore, that it is unlikely that any former patient of the respondent would be disadvantaged if her name were not disclosed in connection with the report of the Tribunal's decision. 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 decision 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 conditions which have been imposed on the respondent's registration in consequence of orders made in the substantive decision including the comprehensive regime accompanying the respondent's testing for alcohol, and the fact that the registration has been suspended for six months will all be publicly accessible. 33 On this basis potential patients and employers of the respondent will have access to information which clearly reveals the nature and extent of the conditions pertaining to her registration, and from which it will be easily ascertainable as to the reasons why they have been imposed. 34 I now turn to the import of the medical and psychological evidence which I have referred to above. It is overwhelmingly to the effect that publication of the respondent's name would create significant risk to her well-being and to her prospects of recovery from both PTSD and Alcohol Use Disorder. This is a matter which must be balanced in the determination of this application. 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, she was required to abstain from alcohol, she was required to engage in a comprehensive regime of alcohol testing, to undertake treatment and was required to work under supervision. The only matters which will not be available on general enquiry are those which relate to the causes for the respondent's registration conditions. In circumstances where none of these causes arose from any particular conduct of the respondent, non-publication of them does not adversely affect the interest of the public in open justice as it concerns these proceedings. 36 On balance I conclude that the necessity to enhance the well-being of the respondent and to enhance her prospects of recovery constitute special, exceptional, and out of the ordinary circumstances which justify the making of the non-publication order sought by the respondent, in the context of the unlikely disadvantage to the public whether to past or prospective patients which would result from such an order. 37 I ask the applicant to inform AHPRA that this decision of the Tribunal will be thwarted if a link to it is provided on its website or otherwise made available to the public concerning the respondent." 1. A substantive reason for supporting the non-publication order was that any member of the public who wished to enquire about the respondent once she recommenced practice would ascertain that she had an impairment in the nature of Alcohol Abuse Disorder and would therefore be entitled to make an informed decision whether to engage the respondent as her or his dental practitioner, supported by the extensive testing program in place. Absent that information, the safeguards against the respondent suffering a relapse will consist of her treatment regime, her adherence to the testing regime and the alertness of an employer to any breach of the testing regime and any sign that the respondent has relapsed. These are substantial safeguards, but do not accommodate any innate concerns that a member of the public might have that his or her dental practitioner has an impairment of the kind described. 2. Overall, I am persuaded to make a non-publication order in the terms previously made notwithstanding the understanding that the "health conditions" may no longer be available to members of the public on the following bases 1. the discretion vested in the National Board as to whether these "health conditions" will be referred to on the public register will be exercised by it in discharge of its statutory functions, which will obviously include consideration of the health and safety of the public and the overall public interest as well as privacy concerns relating to the respondent 2. there are substantial safeguards in place designed to ensure that the respondent will at all times abstain from alcohol while she remains registered as a dental practitioner 3. the comprehensive protocols requiring frequent testing for alcohol consumption, undertaking treatment and employer supervision will all be continuously monitored by the Dental Council of NSW. 1. In so doing, I exercise the powers given to the Tribunal under section 64(1)(c) and (3) of the Civil and Administrative Tribunal Act 2013 (NSW). 64 TRIBUNAL MAY RESTRICT DISCLOSURES CONCERNING PROCEEDINGS (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders-- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. Accordingly, I shall revoke the non-publication order as previously made and will make a new order in the same terms. I shall 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 decision 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." Orders 1. 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." ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2021