Lindsay v Health Care Complaints Commission [2005] NSWCA 356

New South Wales Court of Appeal

CITATION: Lindsay v Health Care Complaints Commission [2005] NSWCA 356

HEARING DATE(S): 6 September 2005

JUDGMENT DATE: 8 November 2005

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Hunt AJA at 4

DECISION: 1. The appeal is allowed in part; 2. The appeal against the Medical Tribunal's decision refusing to grant a stay of proceedings is dismissed; 3. The appeal against the Tribunal's decision upholding the complaints against the appellant in relation to his medical records concerning Patients A and B is dismissed; 4. The appeal against the Tribunal's characterisation of the appellant's failure to provide Patient A with a copy of his pathology results as unsatisfactory professional conduct is upheld, and the complaint against the appellant in relation to his conduct concerning Patient A is to that extent dismissed; 5. The Tribunal's decision dismissing the complaint against the appellant in relation to his conduct otherwise than in relation to his medical records concerning Patient B is confirmed; 6. The appeal against the Tribunal's finding that the appellant be severely reprimanded in relation to his medical records concerning Patients A and B is dismissed; 7. The following audit condition on the appellant's registration as a medical practitioner is imposed pursuant to s 61(1)(c) of the Medical Practice Act 1992 in substitution for that imposed by the Tribunal:; Dr Lindsay is to continue to submit to a random audit of his medical records by the person or persons already nominated by the New South Wales Medical Board to monitor his compliance with Schedule 2 of the Medical Practice Regulation 2003 as required by the Board. Dr Lindsay is to continue to authorise the said person or persons to prepare for the Board a report of his/her findings. Dr Lindsay is to meet all costs associated with the audit programme; 8. The following supervision condition on the appellant's registration as a medical practitioner is imposed pursuant to s 61(1)(c) in substitution for that imposed by the Tribunal:; Dr Lindsay is to accept supervision by the person already nominated by the Medical Board to provide support and to monitor Dr Lindsay's keeping of medical records for his patients. The supervisor is to provide supervision to the third level nominated in the Board's policy PCH 7.1 dated August 2002. The costs of such supervision and reporting to the Board at least annually is to be borne by Dr Lindsay. It is an element of this condition that Dr Lindsay cooperate fully with his supervisor; 9. The appeal against the costs order made by the Tribunal is upheld. The Commission is ordered to pay 75% of the appellant's costs in the Tribunal, such costs to include all the costs thrown away as a result of the various amendments made to the complaints by the Commission; 10. The appellant is ordered to pay 60% of the Commission's costs of the appeal.