Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Hearing dates: On the papers Decision date: 06 July 2011 Before: McColl JA at 1, Basten JA at 2, Sackville AJA at 58 Decision: 1 The registration of the practitioner is subject to the following conditions: (1) The practitioner may practice psychiatry involving the treatment of: (i) patients who have previously been diagnosed by a psychiatrist or other medical practitioner as psychotic or suffering from acute psychosis; or (ii) patients whose behaviour or symptoms, assessed in accordance with the standards of a competent psychiatrist, could reasonably be assessed as psychotic or suffering from acute psychosis; only: (a) as a member of a practice including at least two other psychiatrists, and (b) in circumstances where one of the other psychiatrists undertakes to provide supervision on the following terms: (i) the practitioner and the supervisor are to meet for at least two hours on a fortnightly basis in the first three months and thereafter on a monthly basis; (ii) at such meetings the supervisor is to review the cases of all new patients of the practitioner and all patients with a significant change in their condition, the medical records kept by the practitioner, clinical outcomes, patient follow-up and communication with referring practitioners; (iii) the supervisor is to complete a record of matters discussed at the meeting in a format approved by the Medical Council of New South Wales; (iv) the supervisor is to report to the Medical Council of New South Wales in writing and in a format approved by the Council, within 7 days of each meeting; (v) the supervisor is required to inform the Medical Council of New South Wales immediately of any concern in relation to the practitioner's compliance with the requirements of supervision or clinical performance of the practitioner, or if the relationship of practitioner and supervisor ceases. (2) Before commencing practice in the circumstances referred to above, the practitioner shall: (a) nominate to the Medical Council a supervisor, who is a member of the practice she is to join, and who satisfies the requirements of a supervisor under the Policy No PCH 7.5, Supervision (Performance, Conduct, Health) of the Medical Council of New South Wales, Part 1, to provide supervision in accordance with the description noted at p 3, level 2; (b) provide the proposed supervisor with the terms of these conditions and a copy of the Reasons of the Medical Tribunal of 7 June 2010 and the judgments of this Court; (c) arrange for the proposed supervisor to advise the Medical Council of his or her willingness to act in that role; (d) obtain the approval of the Medical Council to the proposed supervisor (which approval is not to be unreasonably withheld), and (e) inform each psychiatrist working in the practice of the terms of these conditions and supply to each a copy of the Reasons of the Medical Tribunal of 7 June 2010, and the judgments of this Court. (3) In the event that the supervisor will be unavailable to supervise the practitioner at the location of their practice for a period exceeding 15 continuous working days, he or she shall give the practitioner such advance notice as is possible, so that an alternative supervisor, approved by the Medical Council, may be engaged for the period of absence. (4) The practitioner shall bear any costs associated with the supervision. (5) These conditions are to apply until the practitioner notifies the Medical Council in writing of her intention to cease practicing as a psychiatrist, or until the expiration of three years from the date of these orders, whichever date is the earlier. (6) The practitioner is required, as part of these conditions, to provide a copy of these conditions to each principal of the practice and to provide a copy signed by each principal to the Medical Council prior to commencing practice in accordance with these conditions. In addition to the protective order, the following orders as to costs should be made: 2 Remit the issue of costs to the Medical Tribunal for it to determine costs on the basis that the practitioner must pay to the Commission 70% of its costs of the inquiry before the Tribunal. 3 Order that the Commission pay the practitioner 75% of her costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - trial and appeal costs - professional disciplinary proceedings - general rule that costs follow event - Commission partly successful against the practitioner - full costs not recoverable.