Beran v Medical Council of New South Wales [2023] NSWCATOD 104

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beran v Medical Council of New South Wales [2023] NSWCATOD 104 Hearing dates: 3 – 4 April 2023 Date of orders: 19 July 2023 Decision date: 19 July 2023 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr J Lawson, Senior Member Dr M Priglinger, Senior Member D Telford, General Member Decision: (1) Within 14 days of the date of publication of these reasons, Professor Beran is to file and serve any submissions as to costs and any submission as to whether the question of costs should be determined 'on the papers' under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) Within a further 14 days, the Medical Council is to file and serve any submission as to costs and any submission as to whether the question of costs should be determined 'on the papers' under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (3) Within a further 7 days, Professor Beran is to file any submissions in reply. (4) The Tribunal imposes the following conditions on the practitioner's registration: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice including non-clinical practice. 2. To complete within 6 months of the date of this decision the Clinical Communication Program organised by the Cognitive Institute. a. Within 3 months of the date of this decision, he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b. Within 2 weeks of completing the abovementioned course, he must provide documentary evidence to the Council that he has satisfactorily completed the course. 3. To bear responsibility for any costs incurred in meeting condition 2. 4. If the Clinical Communication Program is not available, he must propose a similar course to Council for approval within 2 months of the date of this decision. 5. To undertake clinical practice in a public or private hospital position, but not in sole private practice. 6. To treat no more than one new patient every 45 minutes and to treat no more than one existing patient every 30 minutes. 7. When requesting or referring a patient for any Sleep Deprivation Electroencephalography Scans (EEGs), the practitioner must: a. State the reasons for the need for sleep deprivation in the request itself; and b. Not order more than twenty-four hours of sleep deprivation in any request. 8. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all Sleep Deprivation EEG requests and referrals issued during the month. The record must include: a. the full name and date of birth of the patient b. date of consultation when request/referral made c. reasons and clinical indication for requesting/referring patient to Sleep Deprivation EEG request d. enclosing copy of the sleep deprivation request/referral itself. 9. 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. (5) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting the publication or disclosure of the name of Patient A referred to in these reasons. Catchwords: HEALTH — Professional registration and discipline – appeal under s 160 of Health Practitioner Regulation National Law (NSW) – meaning of "dealing with an appeal by way of a new hearing" – making factual findings on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50(2), 79 Health Practitioner Regulation National Law (NSW), ss 3A, 3B, 4, 153, 153A, 155C, 156C, 159, 159A, 160, 160A, 175, Sch 5D cl 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Texts Cited: Austroads & National Transport Commission, Assessing fitness to drive for commercial and private vehicle drivers, Medical standards for licensing and clinical management guidelines (2002) Medical Board of Australia, Good Medical Practice: A code of conduct for doctors in Australia (March 2014) Category: Principal judgment Parties: Professor Roy Beran (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: S Maybury (Appellant) H Bennett (Respondent)