Health Care Complaints Commission v Flekser [2016] NSWCATOD 1

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Flekser [2016] NSWCATOD 1 Hearing dates: 10, 11,12 August and 8, 9 October, written submissions 22 October 2015 Date of orders: 19 January 2016 Decision date: 19 January 2016 Jurisdiction: Occupational Division Before: A/Judge Hon. Wayne Haylen QC - Deputy President Dr A Reid - Professional Member Dr I Symington - Professional Member Dr C. Berglund - Lay Member Decision: 1. Complaint of unsatisfactory professional conduct established in relation to Particulars 1, 2, 4, and 6.

2. Conduct considered separately and cumulatively held to constitute professional misconduct.

3. Case listed for further Directions regarding consequential orders. Catchwords: Health Practitioner Regulation National Law – s 139B and s 139E – unsatisfactory professional conduct – professional misconduct- improper or unethical conduct relating to the practice of medicine – claiming and receiving fees for assistance at operations knowing that no such assistance had been provided – submitting application for provider number knowing no right of private practice – claiming and receiving fees for private patient operations conducted at public hospital knowing no right of private practice at that hospital – failure to apply for leave without pay from public hospital when claiming and receiving fees for assistance in operations performed at private hospital- knowingly make false entries in web based audit application when data would be submitted to Board of Vascular Surgeons and Royal College of Surgeons in support of accreditation as a vascular surgeon Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Giorgianni v The Queen (1985) 156 CLR 473 He Kaw Teh v The Queen (1985) 157 CLR 523 Kural v The Queen (1987) 162 CLR 502 Pereira v DPP (1988) 63 ALJR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 R v Byrne (1995) 193 CLR 501 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Robert Leigh Flekser (Respondent) Representation: Counsel: C. O'Donnell (Applicant) S. Barnes (Respondent)