Reimers v Medical Council of NSW [2015] NSWCATOD 38

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Reimers v Medical Council of NSW [2015] NSWCATOD 38 Hearing dates: [2015] NSWCATOD 38 Decision date: 27 April 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ Dr M Mulligan (Professional member) Dr M Giuffrida (Professional member) J Houen (Lay member) Decision: 1. The application is dismissed 2. The applicant is to pay the costs of the respondent save for those relating to the hearing on 23 October, 2014 Catchwords: Medical practitioner- application for re-registration- onus and evidence necessary to demonstrate appropriate to re-register- Held not satisfied Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 Litchfield v Medical Council of New South Wales [2012] NSWMT8 Category: Principal judgment Parties: Dr Gerrit Reimers (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: E Raper (Respondent)

Solicitors: G Reimers (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1420071

REASONS FOR DECISION

Introduction 1. This is an application in which the applicant, Dr Gerrit Reimers seeks, under section 163A of the Health Practitioner Regulation National Law (NSW) ("the Act") a review of an order made by the Medical Tribunal of New South Wales on 4 November, 2003 to cancel his registration as a medical practitioner in New South Wales. The respondent is the Medical Council of NSW. 2. The relevant provisions of the Act are as follows; 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of-- (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made-- (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to a Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section--"decision-making entity" means the following-- (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3; (c) the Chairperson or Deputy Chairperson of a Tribunal; (d) a Tribunal; (e) the Supreme Court. "relevant order", in relation to a person, means any of the following orders made by a decision-making entity-- (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-- (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order-- (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a "critical compliance condition" unless the body orders otherwise. (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if-- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. 1. It is common ground for the purpose of these proceedings that this Tribunal is the appropriate review body as referred to in section 163A. It is also common ground that the relevant order for the purpose of section 163A is the order of the Medical Tribunal referred to above. 2. In conducting this review, this Tribunal is required to take into account the matters referred to in section 163C(3), which for present purposes include the complaints which were the subject of the proceedings before the Medical Tribunal. 3. Included within section 163A is a requirement to take into account any complaint made to a relevant body of the kind referred to. As will be seen, the applicant came to the attention of a "Board" in 1997. We were informed by counsel for the respondent, that those matters are "complaints" for the purpose of Sec 163A, by reason of certain transitional provisions, and this was accepted by the applicant as being correct. We shall proceed on this basis.