AIN v Medical Council of New South Wales [2016] NSWCATAD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AIN v Medical Council of New South Wales [2016] NSWCATAD 6 Hearing dates: 10 and 11 September 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: N Isenberg - Senior Member Decision: The application is dismissed Legislation Cited: Privacy and Personal Information Protection Act 1998 Cases Cited: Roads and Maritime Services v AF; AF v Roads and Maritime Services [2011] NSWADTAP 63 ZR v Department of Education and Training [2010] NSWADTAP 75 WL v Randwick City Council [2007] NSWADTAP 58 NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 PN v Department of Education and Training [2009] NSWADT 287 PN v Department of Education and Training [2010] NSWADTAP 59 APV and APW v Department of Community Services [2015] NSWCATAD 140 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Category: Principal judgment Parties: AIN (Applicant) Medical Council of New South Wales (Respondent) Representation: Solicitors: AIN (Applicant in Person) Crown Solicitor's Office (Respondent) File Number(s): 123226

Judgment

Background 1. The Applicant is a medical practitioner. Registration as a medical practitioner is determined by the Respondent and, formerly, by its predecessor, the Medical Board of NSW ('the Board'). 2. Each year from 2004 to 2008, the Applicant applied for general registration and declared that her professional indemnity insurance status for the practice year would be "Limited Prescribing and Referral", which permitted her to undertake limited practice without professional indemnity insurance. 3. In May 2009, the Applicant sought general registration without the Limited Prescribing and Referral restriction, but the Board's Registration Committee refused her application. The Applicant then lodged an appeal to the Medical Tribunal. 4. In October 2009, after receiving further information from the Applicant, the Board referred the Applicant's application for unconditional general registration to a formal inquiry ('Inquiry'), under Schedule 1 to the (now-repealed) Medical Practice Act 1992. 5. In December 2009, following the Inquiry, the Board decided that although it was appropriate to grant the Applicant general registration, the registration was to be subject to conditions, including as to supervision. The Applicant appealed the Board's decision to the Medical Tribunal. 6. Both Medical Tribunal appeals were heard on 18-19 October 2010. The parties settled the proceedings, save as to costs (which were awarded in the Applicant's favour), by agreeing to orders imposing revised conditions on the Applicant's general registration. 7. Meanwhile, On 1 July 2010, details of the applicant's registration, along with that of all other registered medical practitioners in New South Wales, was transferred to Australian Health Practitioner Regulation Agency ('AHPRA') under the new national scheme (Health Practitioner Regulation National Law ('National Law')). The applicant's general registration, with conditions, transitioned to the national scheme. 8. On 21 February 2011, the Applicant made a complaint to the Health Care Complaints Commission ('HCCC') about APM, who was a member of the Board. The HCCC notified the Respondent of the complaint, in accordance with s.10 of the Health Care Complaints Act 1993, but subsequently, the HCCC discontinued the complaint, it appears, on the basis that it did not relate to the practice of medicine. 9. The Respondent determined that it should deal with the Applicant's complaint, as there was a possibility it related to APM's role as a Board member. However, on 3 May 2011, the Respondent's Executive Committee decided to take no further action in relation to the Applicant's complaint, and the Applicant was so advised. 10. In October 2011, the Applicant wrote to the Respondent saying that its decision to grant her LPR registration was without statutory power and that she, in fact, had held general registration at all relevant times. After taking legal advice, the Respondent wrote to the Applicant in December 2011, saying that it now appreciated that her registration in 2008 did not require amendment and that she had retained General Registration at all times. 11. On 13 February 2012 the Medical Respondent altered the Register to record that the Applicant's general registration did not have the conditions previously recorded as resulting from the Inquiry and the appeal to the Medical Tribunal. 12. On 20 February 2012, at the Respondent's request, AHPRA amended the Applicant's entry in the National Register by removing all conditions on the Applicant's general registration.