Health Care Complaints Commission v Howe [2014] NSWCATOD 30

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Howe [2014] NSWCATOD 30 Hearing dates: 3, 4, 5, 6, & 7 February 2014 Decision date: 07 April 2014 Jurisdiction: Occupational Division Before: Acting Judge R H Solomon, Principal member Dr M Giuffrida, Medical member Dr M Friend, Medical member Dr C Berglund, Lay member Decision: Complaint One is proven Complaint Two is not proven The Tribunal orders that the registration of the practitioner is subject to conditions. The Tribunal orders that each party pay its own costs. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElory (1965) 112 CLR 517, Bannister v Walton (1993) 30 NSWLR 699) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Gordon Christopher Howe (Respondent) Representation: Counsel Mr P Griffin (Complainant) Mr M Lynch (Respondent) Health Care Complaints Commission (Complainant) Avant Law Pty Ltd (Respondent) File Number(s): 1420015 Publication restriction: Non publication order made in respect of any patient of Dr Howe referred to in the proceedings.

order and reasons for decision 1The Tribunal is constituted to deal with a Complaint received by it from the Health Care Complaints Commission ("HCCC"). 2The Complaint to be dealt with by the Tribunal is that Dr Gordon Christopher Howe ("the practitioner") being a medical practitioner registered under the Health Practitioner Regulation National Law ("the National Law"): COMPLAINT ONE Has impairments. PARTICULARS OF COMPLAINT ONE (1)The practitioner has physical and mental impairments and conditions, namely Parkinson's disease with mild cognitive impairment, hearing loss and monocular vision that detrimentally affect or are likely to detrimentally affect the practitioner's capacity to practise the profession. COMPLAINT TWO Is not competent to practise the medical profession under section 139 of the National law as the practitioner does not have sufficient physical and mental capacity to practise the profession. PARTICULARS OF COMPLAINT TWO (1)The practitioner has impairments as particularised in Complaint 1 above. (2)The practitioner's impairments are of a sufficient nature and degree to impair the practitioner's physical and mental capacity to practise the profession. 3The Health Care Complaints Commission bears the onus of proving the particulars contained in the Complaint to the Tribunals comfortable satisfaction on the balance of probabilities (see Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElory (1965) 112 CLR 517 and Bannister v Walton (1993) 30 NSWLR 699). The Health Care Complaints Commission seeks an order that the Tribunal cancel the practitioner's registration pursuant to section 149C(1)(a) of the National Law.