Health Care Complaints Commission v Robinson (No 3) [2023] NSWCATOD 34

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Robinson (No 3) [2023] NSWCATOD 34 Hearing dates: 8 December 2022 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Occupational Division Before: The Hon M Le Poer Trench ADCJ, Principal Member Associate Prof I Rewell, Senior Member Dr G Thomson, Senior Member J Houen, General Member Decision: (1) The Respondent's registration as a medical practitioner (General and Specialist – Ophthalmology) is suspended for three calendar months from the date of this order. (2) The Respondent's registration is to be subject to the following conditions. Practice conditions 1. To obtain Medical Council of NSW (Medical Council) approval prior to changing the nature or place of his practice. 2. To complete, within 12 months of the date of the Tribunal's decision, the Ethics Counsel Program for Health Professionals organised by the Ethics Centre. a. Within 3 months of the date of the Tribunal's decision, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b) Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. c) To bear responsibility for any costs incurred in meeting this condition. d) In the event that the Ethics Counsel Program for Health Professionals is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making this proposal, by no later than 3 months from the date of the Tribunal's decision. 3. To attend at least two medical conferences of not less than one day's duration, where there are other medical practitioners present and medical practitioners presenting papers, in person (educational lectures). Such conferences to be approved by the Medical Council. Evidence of attendance to be provided to the Medical Council within 14 days of attendance having taken place. 4. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. The approved supervisor or supervisors are to be practitioners who do not practice in the immediate vicinity of the Respondent's practice in the Eastern suburbs of Sydney and are not to be personal friends of the Respondent, his immediate family, or his father. b. At each supervision meeting, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: - professionalism and professional ethics; - maintaining of appropriate professional boundaries with patients; - referral of patients with suspected tumour and/or who require X-ray/CT/MRI imaging; - practising within the practitioner's scope of practice; and - discussion of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia' and 'Guidelines: Sexual Boundaries in the Doctor-Patient Relationship', and discussion of the Royal Australian & New Zealand College of Ophthalmologists (RANZCO) 'Code Of Conduct: The Standard Of Patient Relations'. c. To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision that imposed this condition and any other decision or report as determined by the Council. d. Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. a. The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may: - inspect medical records; b. To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. c. To meet all costs associated with the audit(s)/inspection(s) and any subsequent reports. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions (not for the public) 8. To attend for treatment by a psychiatrist of his choice and if recommended by his psychiatrist, to attend upon a psychologist. The frequency of treatment is to be determined by the treating psychiatrist. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; iii. a significant change in the health status or a significant failure to accept or implement the advice provided (including a significant temporary change); b. must provide the Council with the professional details of the treating practitioner; c. must provide evidence (in the form of a letter from his psychiatrist) to the Council of his attendance with the treating psychiatrist. Review provisions 9. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 10. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (3) The Respondent is to pay the costs of the HCCC as agreed or as assessed. Catchwords: HEALTH – professional registration and discipline – disciplinary proceedings– stage 2 determination – protective orders following stage 1 decision of unsatisfactory professional conduct and professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 3B, 139B(1)(a), 139E, 149C(1) Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Hampshire v Health Care Complaints Commission (NSW) [2021] NSWCA 283 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80 Health Care Complaints Commission v Burton [2017] NSWCATOD 57 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Gillett [2007] NSWNMT 7 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Robinson [2021] NSWCATOD 142 Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 Lee v Health Care Complaints Commission [2012] NSWCA 80 Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 NSW Bar Association v Meakes [2006] NSWCA 340 Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) David Isaac Matzner Robinson (Respondent) Representation: Counsel: P Lowson (Applicant) R Mathur SC (Respondent)