Dr Marburg v Medical Council of New South Wales [2015] NSWCATOD 87

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dr Marburg v Medical Council of New South Wales [2015] NSWCATOD 87 Hearing dates: 27 July and 7 August 2015 Decision date: 07 August 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ Dr C Dalton, Professional member Dr R Payten , Professional member Dr A Glass, Lay member Decision: Appeal allowed by variation of practice conditions, no order as to costs. Catchwords: Medical practitioner - practice conditions imposed while complaints investigated - varied on appeal to expand permitted area of practice –costs order declined Legislation Cited: Health Practitioner Regulation National Law (NSW), ss150, 159 Category: Principal judgment Parties: Dr Alexander Kocmut Von Marburg (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: A Horvath (Appellant) P Ginters (Respondent)

Solicitors: Holman Webb Lawyers (Appellant) Medical Council of New South Wales (Respondent) File Number(s): 1520063 Publication restriction: Non-publication order identifying the patients of the appellant

REASONS FOR DECISION

Introduction 1. These are appeal proceedings brought under section 159 of the Health Practitioner Regulation National Law (NSW), ("the Act") from a decision of delegates of the Medical Council of NSW under section 150 of the Act to impose conditions on his registration as a medical practitioner by precluding him from carrying out surgical procedures. 2. Relevantly, sections 150 and 159 are in the following terms: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given.