In Re Jason Martin [2010] NSWMT 13

New South Wales Medical Tribunal

CITATION : In Re Jason Martin [2010] NSWMT 13 TRIBUNAL: Medical Tribunal PARTIES : Mr Jason Martin NSW Medical Board FILE NUMBER(S) : 40006 of 2010 CORAM: Backman J - Child, Dr D - O'Brien, Dr E - Ettinger, Ms G CATCHWORDS: Reinstatement with conditions LEGISLATION CITED: Medical Practice Act 1992 Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 448; CASES CITED: Peter Cecil Harcourt Dawson v The Law Society of New South Wales [1989] NSWCA 58; Re Mansoor Zaidi [2006] NSWMT 6 DATES OF HEARING: 01/06/2010 DATE OF JUDGMENT: 15 October 2010 Mr M Ainsworth of counsel Unsworth Legal (Mr T Unsworth) LEGAL REPRESENTATIVES: Ms G Furness of counsel NSW Medical Board (Ms B Andersons) ORDERS: Reinstatement with conditions

JUDGMENT: - 24 - MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRPERSON: BACKMAN J Members: DR D CHILD, AM DR E O'BRIEN MS G ETTINGER

Friday, 15 October 2010

Matter No MT 40006 of 2010

In Re Jason Martin

Application under s 92 of the Medical Practice Act 1992

DECISION [2010] NSWMT 13

· Before the Tribunal is an application by Jason Martin (the applicant) under s 92 of the Medical Practice Act 1992 (the Act) for review of an order made by the Tribunal, differently constituted, on 27 August 2009 that he be removed forthwith from the Register of Medical Practitioners and he not apply for re-registration for a period of 4 months from the date of the Order. The ground relied upon in the application is that the applicant is a fit and proper person to practice as a medical practitioner in New South Wales. If successful on the present application, the applicant seeks an order for reinstatement, subject to conditions, under s 94 of the Act. Draft conditions were handed up to the Tribunal for its consideration by the respondent (NSW Medical Board) (the Board) during the proceedings. · Section 94 of the Act provides: (1) The appropriate review body is to conduct an inquiry into an application for review and may then do any of the following: (a) dismiss the application, (b) by its order terminate or shorten the period of the suspension concerned, (c) make a reinstatement order, (d) make an order altering the conditions to which the person's registration is subject (including by imposing new conditions), (e) by its order terminate or shorten the period of a prohibition order or alter the conditions to which the person is subject under a prohibition order (including by imposing new conditions). (2) A reinstatement order is an order that the person be registered subject to the same conditions and limitations (if any) to which the person's registration was subject immediately before the person ceased to be registered. The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (3) The Board is to cause such recordings to be made in the Register as may be necessary to give effect to a reinstatement order. (4) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. · The Tribunal has been nominated as the "appropriate review body" under s 93 of the Act. · Section 94A of the Act is also relevant to the present application. It provides: (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered. (3) In addition to any other matter that the review may take into account, the review must take into account any complaint made or notified to the Board about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Division 3 of Part 4 or any other action was taken on the complaint. Background to removal from the Register