Health Care Complaints Commission v Firth (No 3) [2015] NSWCATOD 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Firth (No 3) [2015] NSWCATOD 118 Hearing dates: 23 February 2015 Date of orders: 23 February 2015 Decision date: 23 February 2015 Jurisdiction: Occupational Division Before: M Joseph SC, Principal member Prof C Willcox, Professional member Dr E Collins, Professional member Prof D Anderson, Lay member Decision: The Tribunal finds the practitioner guilty of professional misconduct Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) I Firth (Respondent in person) Representation: Counsel: A Britt (Applicant) T Hammond (Respondent)

Solicitors: J Dinihan, Health Care Complaints Commission (Applicant) I Firth (Respondent in person) File Number(s): 1420296 Publication restriction: A non publication order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 ( NSW) in respect of the names of all persons identified as patients.

Reasons for decision 1. The Tribunal reconvenes this morning in slightly unusual circumstances in the matter of Ian Firth. The unusual circumstances briefly are that the Tribunal has been informed that there is some uncertainty as to the incapacity of, in particular, the Principal Member, to continue hearing this matter after his term finishes on about 28 February this year. Therefore, there has been some haste in trying to accommodate that possibility even though it is by no means a certain outcome. 2. The Tribunal has taken the unusual procedure of handing down to the representatives of the HCCC and Mr Firth, a 'draft decision' whilst reading the final decision onto the record. 3. What is to be handed down is not to be considered in any way the full decision, as for no other reasons there will be from time to time be insertions which will obviously form a part of the final decision. The reason for handing down for what is "draft decision" is to allow the parties the opportunity of having a draft in front of them so they do not have to write furiously for the next couple of hours or whatever, and so they can consider it in hard copy form, draft form, because the Tribunal will after today adjourn until Friday 27 February to consider what protective orders ought to be made. The 'draft decision' is to facilitate the early adjourned date. 4. I will hand down three copies, one each for the representative of the parties and one for the transcription reporter. 5. We will proceed with the decision. Before I do that, is there anything further the parties wish to say? I appreciate your legal counsel are not present, is there anything, further submissions your counsel might have felt had been overlooked on the previous occasion because we did to some extent run a bit short of time? MS HARTWELL: No that is fine. MS DINIHAN: Not from the Commission thank you 1. The Tribunal today will find proven on the balance of probabilities to the requisite standard, complaints of unsatisfactory professional conduct and professional misconduct in respect of complaints brought by the Health Care Complaints Commission hereinafter referred to as the HCCC under the identified provisions of the Health Practitioners Regulation National Law (NSW) hereinafter called the "National Law" against Mr Ian Ronald Firth, hereinafter referred to as the practitioner. 2. On the first day of hearing of this complaint being 9 February 2015, the Tribunal ordered pursuant to sch 5D(7) of the National Law and s 64 of The Civil Administrative Tribunal Act 2013 (NSW) hereinafter called NCAT Act and pursuant to r 42 of the Civil Administrative Tribunal Rules 2014 that the names of various persons some of whom are set out in the schedule to the complaint but as well other persons including the name of the practitioner and the lay witnesses to be called on behalf of the practitioner, namely his wife and brother, not be disclosed to any person or entity published in any form save and except to the parties to these proceedings. That order extended until the day when the decision was to be made, namely today. 3. Given the Tribunal's findings, the Tribunal pursuant to those same powers, deletes from the non publication order only the names of the practitioner and his witnesses to which the order previously applied, being the name of his wife and brother. 4. To avoid any ambiguity, the Tribunal orders on a permanent basis that any information which would identify the persons annexed to the schedule to the amended complaint including the name of the husband of Patient A and the various friends of Patient A to whom reference is made in this decision be further extended until a further order of the Tribunal. 5. It was the agreed position between the parties that these proceedings should be conducted in what is known as a two stage process. Given the nature and extent of the variety of allegations in the amended complaint, the Tribunal considered it was appropriate to make such an order that the proceedings take place in two stages and thus give the parties the opportunity this coming Friday to address it on what protective orders, if any, should be made in the final disposition of these proceedings. The conduct of these proceedings on this basis is consistent with the observations made by the New South Wales Court of Appeal in King v HCCC [2011] NSWCA 353 and Lucire v HCCC [2011] NSWCA at 99. We shall proceed accordingly. 6. Whilst it might be said that a second stage hearing after such a short period of time from today until this Friday is in fact short, as explained at the outset of the hearing today it is because of the doubt over the Principal Member's capacity to continue to sit after his term expires.