Health Care Complaints Commission v McNab [2023] NSWCATOD 41

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McNab [2023] NSWCATOD 41 Hearing dates: 27 – 29 June 2022 Written submissions received on 12 July 2022 (Applicant), 15 August 2022 (Respondent), 1 September 2022 (Applicant in Reply) 12 October 2022 (further hearing date vacated at request of parties on 6 October 2022) Date of orders: 05 April 2023 Decision date: 05 April 2023 Jurisdiction: Occupational Division Before: The Hon J Stevenson ADCJ, Principal Member Dr C Newberry, Senior Member Dr S Patel, Senior Member Dr C Berglund, General Member Decision: (1) The Respondent has been convicted of a criminal offence in New South Wales for the purposes of section 144(a) of the National Law. (2) The Respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) of the National Law. (3) The Respondent is guilty of professional misconduct within the meaning of section 139E of the National Law. (4) The Tribunal's decision as to costs is reserved for determination at the Stage 2 hearing of these proceedings. (5) The Registrar is requested to fix a date for the Stage 2 hearing. Catchwords: OCCUPATIONS – medical practitioners – misconduct and discipline – professional misconduct – unsatisfactory professional conduct – Stage 1 hearing – where practitioner convicted of a criminal offence in NSW – where practitioner removed patient's underwear in medical consultation without clinical justification and without obtaining informed consent – where practitioner failed to make an accurate and contemporaneous clinical record of the consultation – where instances of the practitioner's unsatisfactory professional conduct taken together are sufficiently serious to warrant suspension or cancellation of their registration Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 139B(1), 139E, 144(a), Sch 5D cl 5(1)(g) Health Practitioner Regulation (New South Wales) Regulation 2016, regs 6(1), 8(1), Sch 4 cll 1(1)-(4), 3 Cases Cited: A v N [2012] NSWSC 354 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Campbell v Campbell [2015] NSWSC 784 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Andrew Graham McNab (Respondent) Representation: Counsel: R Coffey (Respondent)