Health Care Complaints Commission v Fraser [2014] NSWCATOD 29

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 Hearing dates: 15 - 19 July 2013, 19 - 22 November 2013, 26 - 29 November 2013, 3 - 6 December 2013 Decision date: 04 April 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ (Chairperson) Ms Maureen Ryan (Nurse Member) Ms Suellen Moore (Nurse Member) Mr Peter Shearing (Lay Member) Decision: The Tribunal finds the particulars have established the conduct amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal orders : 1)In the event that the respondent wishes to have the opportunity to provide any evidence or make any submissions to the Tribunal in respect of protective orders and costs orders it may make she shall by 17 April 2014 notify in writing the Registrar of the New South Wales Civil and Administrative Tribunal, Occupational Division ("the Registrar") and if appropriate file and serve any material on which she seeks to rely. 2)In the event there is no compliance by the respondent with Order 1 in the time provided in that order, or the respondent notifies the Registrar that she does to wish to present any material or make any submissions to the Tribunal then the Health Care Complaints Commission ("HCCC") shall within 28 days of the date of this order provide written submissions in respect of the protective orders and or costs which it seeks. Catchwords: COMPLAINT - Where it is asserted that practitioner knew or was recklessly indifferent to the fact that former medical practitioner was not registered at the time of administration of alternative cancer therapy known as Insulin Potentiation Therapy ("IPT") or that she administered intravenous vitamin therapy without the order of a registered medical practitioner. Whether practitioner's conduct in administering IPT or intravenous vitamin therapy demonstrated care exercised by practitioner is significantly below the standard reasonably expected of practitioner of her experience, and/or whether practitioner engaged in unethical and improper conduct. Whether practitioner was engaged in procuring and supply of chemotherapy drugs without appropriate authorisation. Whether conduct constitutes unsatisfactory professional conduct and or professional misconduct. HELD - the complaints are proved. PROTECTIVE ORDERS - Procedural fairness -Whether nature of proceedings requires two stage hearing to afford procedural fairness to the practitioner. HELD "Two stage" hearing, or opportunity for practitioner to respond to orders sought, necessary. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Therapeutic Goods Act1989 (Cth). Cases Cited: Abebe v Commonwealth (1999) 197 CLR 510 Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 Aon Risk Services Limited v Australian National University (2009) 239 CLR 175; (2009) HCA 27 Banditt v The Queen (2005) 224 CLR 262; (2005) 80 ALJR 421; [2005] HCA 80 Bardsley-Smith & Anor v Penrith City Council & Others [2012] NSWLEC 79 Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 Browne v Dunn (1893) 6 R 67 Derry v Peek (1989) 14 AC 337 Frost v Kourouche [2014] NSWCA 39 Hall v The University of New South Wales [2003] NSWSC 669 Kalil v Bray [1977] 1 NSWLR 356 King v Health Care Complaints Commission [2011] NSWCA 353 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Medical Board of Australia v Judge Horeman-Wren & Leggett [2013] QSC 339 Minister v Health v Thomson (1985) 8 FCR 213 Prepaid Services Pty Ltd & Ors v Alradius Credit Insurance NV [2013] NSWCA 252 Texts Cited: Cross on Evidence Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Nola Fraser (Respondent) Representation: Counsel N Sharp (Complainant)