Health Care Complaints Commission v Desland [2022] NSWCATOD 13

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Desland [2022] NSWCATOD 13 Hearing dates: 23, 24, 25 August 2021 and 9 September 2021 (final submissions) Date of orders: 7 February 2022 Decision date: 07 February 2022 Jurisdiction: Occupational Division Before: A Britton, Deputy President D Rae, Senior Member B Sheridan, Senior Member M Christensen, General Member Decision: (1) Mr Desland is guilty of professional misconduct. (2) Mr Desland is reprimanded. (3) Mr Desland's registration is subject to the following conditions: Supervision (a) Mr Desland is to practise under Category C supervision in accordance with the Psychology Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the Psychology Council of NSW. (b) Supervision is to occur for a period of twelve (12) months or for any further period as determined by the Psychology Council of NSW. (c) Mr Desland is to provide supervision reports to the Psychology Council of NSW on a three-monthly basis. (d) Mr Desland to meet with the supervisor on a weekly basis for a minimum of one hour. (e) Within three months of commencing supervision, and thereafter every six months, Mr Desland must discuss with his supervisor, his caseload (hours of work and mix of patients). (f) Mr Desland is to authorise the supervisor to inform the Psychology Council of NSW within one business day if there is any concern about Mr Desland's professional conduct. (g) Mr Desland is to authorise the supervisor to report to the Psychology Council of NSW about his professional conduct at the conclusion of the twelve (12) month period. (h) Mr Desland is to authorise the Psychology Council of NSW to provide proposed and approved supervisors with a copy of these conditions, and any relevant decision or report. Audit (i) Mr Desland is to submit to an audit of his practice by a person or persons nominated by the Psychology Council of NSW and: (i) The audit is to be held within six (6) months of the imposition of these conditions and subsequently as required by the Council. (ii) The auditor is to examine and assess the following aspects of his practice including: (A) Compliance with good record keeping standards and legislative requirements; (B) Compliance with conditions on registration. (iii) To authorise the auditor to provide the Council with a report on their findings. (4) The appropriate review body for the purposes of Pt 8, Div 8 of the National Law is the Psychology Council of NSW. (5) Sections 125 to 127 of the National Law 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. (6) Within 14 days of this Decision, any party seeking costs must file and serve short submissions in support of their application. (7) Within 10 days of receipt of those submissions, the other party must file and serve any submissions in reply. (8) Within 21 days of the date of this decision, each party must notify the Tribunal and each other in writing whether in their opinion the issue of costs can be adequately determined on the basis of written submissions and without holding a further hearing as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: HEALTH PRACTITIONER – unsatisfactory professional conduct – misconduct – considerations relevant to the exercise of the discretion to make protective orders PRACTICE AND PROCEDURE - suppression orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Rules 2014 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 Ng v Health Care Complaints Commission [2017] NSWSC 53 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Malcolm Desland (Respondent) Representation: Counsel: A Petrie ((Applicant) B Tronson (Respondent)