Health Care Complaints Commission v Guard (No 2) [2022] NSWCATOD 103

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Guard (No 2) [2022] NSWCATOD 103 Hearing dates: 25 - 27 July 2022 Date of orders: 15 September 2022 Decision date: 15 September 2022 Jurisdiction: Occupational Division Before: The Hon G Watts ADCJ, Principal Member Dr G Yeo, Senior Member Dr L Cotterell, Senior Member Ms D Telford, General Member Decision: (1) The Tribunal having found that Dr Edwina Guard (the Practitioner) is guilty of professional misconduct and suffers an impairment, orders that: (a) The Health Care Complaints Commission is within 21 days of the date of these Orders, to file and serve upon the Practitioner any material and submissions upon which it seeks to rely at a Stage 2 hearing in respect of appropriate protective orders and costs. (b) The Practitioner is to file and serve on the Health Care Complaints Commission any material and submissions upon which she seeks to rely within 21 days of receipt of the material and submissions provided pursuant to Order 1(a). (c) The Health Care Complaints Commission is to file and serve on the Practitioner material and submissions in reply, if any, 7 days after receipt of any material and submissions provided pursuant to Order 1(b) of these Orders. (2) On or before 27 October 2022, the parties are to provide to the Registrar a list of mutually available dates for the Stage 2 hearing in the period 7 November 2022 to 9 December 2022. (3) Pursuant to Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law an order is made prohibiting the publication of the name of any patient set out in the Schedule to the Complaint, any patient otherwise referred to in the evidence, the names of children referred to in the evidence, and the name of the practice and the names of the two general practitioners nominated by Dr Guard as being her intended treating general practitioners. Catchwords: HEALTH – Professional registration and discipline – professional misconduct – whether practitioner suffers an impairment Where it is asserted that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct and is impaired – Where the practitioner failed on 32 occasions to comply with a condition of practice – Where the practitioner provided medical services, including writing prescriptions on numerous occasions, after a condition was placed upon her registration not to practise medicine – Where the practitioner backdated prescriptions in contravention to clause 80(1)(a) of the Poisons and Therapeutic Goods Regulation (2018) – Where the practitioner failed to respond to statutory notices validly issued under the HCC Act – Where the practitioner is guilty of acts of unsatisfactory professional conduct, which when considered together, are of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration and constitute professional misconduct – Where the practitioner has a mental impairment, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medicine. Where the practitioner sought an adjournment – Where a previous scheduled hearing had been vacated – Where the practitioner had a significant history of not responding to valid statutory requests for information by the HCCC – Where the practitioner sought more time to have the HCCC update its evidence as to her mental state – Where there had been ample opportunity afforded to the practitioner to do so, which opportunity she had not taken up – Where the practitioner did not seek to adduce her own medical evidence – Where other cases awaiting hearing were taken into account – Adjournment refused. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Insurance Act 1973 (Cth) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Health Care Complaints Commission v Guard [2016] NSWCATOD 164 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Texts Cited: Good Medical Practice: a Code of Conduct for Doctors in Australia March 2014 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Edwina Valmai Guard (Respondent) Representation: Counsel: A Bhasin (Applicant)