Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Arnaudon [2023] NSWCATOD 36 Hearing dates: On the papers after 22 February 2023 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Occupational Division Before: N Hennessy ADCJ, Deputy President Decision: (1) Under clause 12 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) the Tribunal decides not to conduct an inquiry into the Complaint filed by the Health Care Complaints Commission on 12 December 2022. (2) The Respondent is to pay the reasonable costs of the Commission as agreed or assessed. Catchwords: HEALTH – professional registration and discipline – complaints – where Tribunal decides not to conduct inquiry into application for disciplinary findings and orders – where not in the public interest for the inquiry to continue – where the person about whom the complaint is made ceases to be a registered health practitioner Legislation Cited: Health Practitioner Regulation National Law (NSW), s 3A(1), Sch 5D cl 12 Poisons and Therapeutic Goods Regulation 2008 (NSW), Sch 4 Appendix D, Sch 8 Cases Cited: Health Care Complaints Commission v Khan [2014] NSWCATOD 83 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Francis Peter Arnaudon (Respondent) Representation: Counsel: C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2022/00374644 REASONS FOR DECISION 1. Dr Arnaudon has applied for the Tribunal not to conduct an inquiry into an application by the Health Care Complaints Commission ("the Commission") for disciplinary findings and orders. The Commission consents to that order. Dr Arnaudon has ceased being a registered medical practitioner and I am of the opinion that it is not in the public interest for the inquiry to continue. 2. The power of the Tribunal to decide not to conduct an inquiry is in clause 12 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) ("the National Law"). That clause provides: 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 1. An application not to conduct an inquiry may be determined by a single member who would normally preside at the hearing: Health Care Complaints Commission v Khan [2014] NSWCATOD 83. In the case of an inquiry into the conduct of a medical practitioner, that member is a judicial officer. 2. One of the circumstances that triggers the Tribunal's power to decide not to conduct an inquiry is where the person about whom the complaint is made ceases to be a registered health practitioner. Dr Arnaudon ceased to be a registered health practitioner on 31 January 2023 when he requested the Australian Health Practitioner Regulation Agency (AHPRA) to remove his name from the register of medical practitioners. He has also signed a statutory declaration stating that he will not reapply for registration. 3. I must also be of the opinion that it is not in the public interest for the inquiry or appeal to continue. Under s 3A(1) of the National Law: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. 1. The Complaint that the Commission brought against Dr Arnaudon relates to prescribing S8 and S4D drugs to six patients. S8 drugs are "controlled drugs" listed in Schedule 8 to the Poisons and Therapeutic Goods Regulation 2008 (NSW). S4D drugs are "prescribed restricted substances" listed in Appendix D to Schedule 4 of that Regulation. 2. There are several factors which persuade me that it is not in the public interest to conduct an inquiry into the Complaint. First, Dr Arnaudon does not pose a risk to the health and safety of the public. Dr Arnaudon is no longer registered and cannot prescribe these substances. As Dr Arnaudon is 78 years old and has retired, it is highly unlikely that he will attempt to practise without being registered or re-apply for registration. 3. Secondly, although general deterrence is often a significant factor in conducting an inquiry, there are many other Tribunal decisions about prescribing S8 and S4D drugs. Other health practitioners know, or should know, how the Tribunal views this kind of conduct. 4. Thirdly, the Commission consents to Dr Arnaudon's application and would otherwise have to expend resources prosecuting an inquiry when Dr Arnaudon is no longer practising. 5. For these reasons, I am of the opinion that it is not in the public interest to conduct an inquiry. Orders 1. Under clause 12 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) the Tribunal decides not to conduct an inquiry into the Complaint filed by the Health Care Complaints Commission on 12 December 2022. 2. The Respondent is to pay the reasonable costs of the Commission as agreed or assessed. ********** 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: 23 March 2023