Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149 Hearing dates: 7 and 8 April 2014, 22-24 July 2014 and 22 August 2014. Decision date: 11 December 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ, Principal Member Dr V De Carvalho, Occasional Member- Professional Dr M Higgins, Occasional Member-Professional Dr C Berglund, Occasional Member Decision: 1.The registration of Dr Biljana Nikolova-Trask (the practitioner) on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia is suspended under s 149C(1)(b) of the Health Practitioner Regulation National Law (the National Law) for a period of three months. 2. The operation of Order 1 is stayed 21 days from the date of these orders. 3. On the expiration of the period of the practitioner's suspension her registration shall be subject of the following orders and conditions: (a) The practitioner shall for a period of three years from the expiration of her suspension not engage in practice as a sole practitioner. (b) Within 12 months of the expiration of her suspension, or such further time as may be agreed with the Medical Council of NSW (the Council) complete at her own expense the distance education course "Medical Ethics" conducted by the Department of General Practice, Monash University, Victoria provided however if such a course is not available in 2015/2016 such other course as nominated by the Council. (c) Within 2 months of the expiration of her suspension, or such further time as may be agreed in writing with the Council, provide evidence in writing to the Council of her enrolment in the course referred to in Order 3 (b) of these orders. (d) Within two weeks of completing the course referred to in Order 3(b) of these orders provide documentary evidence to the Council of satisfactory completion of such course. (e) Within 21 days of the expiration of her suspension the practitioner's shall: (i) provide for approval by the Council the name and professional address of a registered medical practitioner specialising in general practice, other than a practitioner practising in the same practice as the practitioner, who has agreed to act as her professional mentor. The nature and frequency of contact with the practitioner's mentor is to be determined by the mentor in accordance with the Council's Guideline for Mentors (the guidelines) but shall be not less than monthly; (ii) the practitioner shall provide to the mentor a copy of these reasons and a copy of the guidelines; (iii) meet with the approved mentor on a monthly basis, or on such more frequent basis as determined by the mentor within 14 days of the mentor being approved by the Council. If the practitioner remains practising in Broken Hill such contact may if necessary be by Skype or video-link; (iv) authorise the mentor to report to the Council if there is any concern about her professional conduct; (v) authorise the mentor to notify the Council of any failure to participate in any mentoring session, or to do any act or thing contrary to the advice of the mentor or any other matter the mentor considers appropriate; and (vi) continue to meet with the mentor for a period of not less than 18 months from the date of her first consultation with the mentor. 4. In the event that the approved mentor is no longer willing or able to continue as mentor the practitioner shall nominate another mentor for approval by the Council within 28 days of the termination of the original mentoring relationship. 5. Order 3 (e) (i) to (vi) shall apply in respect of any substitute mentor. 6. The practitioner shall be responsible for all costs associated with her mentoring pursuant to these orders. 7. The mentor is requested to include in discussions with the practitioner her personal and professional development as a registered medical practitioner and in particular any issues that may arise relevant to the matters identified in the Further Amended Complaint. 8. The Medical Board of Australia in conjunction with the Australian Health Practitioner Regulation Agency is requested to note the practitioner's suspension and the orders and conditions on the practitioner's registration to come into effect on the expiration of her suspension. 9. In the event that the practitioner seeks to review these orders and/or conditions under s 163A of the National Law and her principal place of residence is in NSW such application shall be heard by the Council as the appropriate review body. If the practitioner's principal place of residence is other than in NSW s 125 to s 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. 10. The practitioner shall pay the costs of Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement liberty to restore before the Tribunal. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal Act 2014. Where practitioner concedes she is guilty of unsatisfactory professional misconduct and professional misconduct in engaging in a sexual relationship whilst maintaining a therapeutic relationship with a patient. Whether practitioner also guilty of unsatisfactory professional conduct or professional misconduct in circumstances where she was also treating patient's wife and step-daughter while in close personal relationship with him. Effect of practitioner engaging in multiple text messaging and telephone communication with another patient with whom she had a close personal relationship. Consideration of the practitioner's use of social media - whether appropriate to provide medical advice and results via Facebook. Consideration of appropriate protective orders. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 Dr Vipal Kumar Mehta and the Medical Practice Act of NSW NSWMT (29 November 2002) Gianoutsos v Glykis [2006]NSWCCA 137(2006) NSWLR 539 Health Care Complaints Commission v Cieslak (No 2) [2013] NSW NMT 23 Health Care Complaints Commission v Do [2013] NSWSC 3 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Philipiah [2013] NSWCA 34 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66(1992) 110 ALR 450 Ohn v Walton (1985) 36 NSWLR 77 Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Biljana Nikolova-Trask (Respondent) Representation: Health Care Complaints Commission (Complainant) File Number(s): 1420054 Publication restriction: On 7 April 2014 a non publication order was made in respect of the patients named in the Further Amended Complaint and the lay witnesses whose evidence was relied on in the proceedings. On 22 July 2014 the non-publication order was extended to include the name of a person referred to as Ms DP. On 24 July 2014 the names of the children of Patient D were added to the non-publication order.