Health Care Complaints Commission v Bracco [2016] NSWCATOD 127

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bracco [2016] NSWCATOD 127 Hearing dates: 15 August 2016 Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr J Fogarty, Professional Member Dr K Arnold, Professional Member B Radcliffe, Lay Member Decision: (1) Dr Vitantonio Bracco ("the practitioner") is reprimanded. (2) The following conditions are imposed on the practitioner's registration: (a) The practitioner is not to engage in solo practice for a period of three years. (b) Within 21 days of this Decision the practitioner is to nominate a registered medical practitioner to act as his professional mentor for approval by the Medical Council of NSW (the Council) in accordance with the Medical Council of NSW's Compliance Policy – Mentor (as varied from time to time). The practitioner is: (i) To participate in meetings with the Council-approved mentor at a frequency to be determined by the mentor, however not less than monthly for the first 6 meetings. (ii) To authorise the Council to provide proposed and approved mentors with: A. A copy of this decision. B. A copy of these practice conditions. (iii) To authorise the mentor to inform the Council (in an approved reporting format) on a 3 monthly basis that these meetings have occurred, and ensure that the mentor does in fact provide those reports. (iv) To authorise the mentor to inform the Council immediately if the mentoring relationship ends or of any concerns regarding the performance of the practitioner or his compliance with any conditions on his registration. (v) To be mentored for a minimum period of two years and as subsequently determined by the Council. (vi) To otherwise comply with the Medical Council of NSW's Compliance Policy – Mentor (as varied from time to time). (c) The practitioner is to attend for treatment by a psychologist or psychiatrist of his choice on a quarterly basis for a period of two years. The practitioner is: (i) To provide the Council with the name and details of the treating practitioner. (ii) To authorise the Council to provide the treating practitioner a copy of the Reasons for Decision. (iii) To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). (d) The practitioner is to be responsible for any costs associated with meeting conditions 1 – 3. (3) The Medical Council of NSW is requested to inform the Australian Health Practitioner Regulation Agency as soon as practicable of Orders 1 and 2 of these orders. (4) The Medical Council of NSW is the appropriate review body to review the conditions imposed by Order 2 of these orders. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply if the practitioner's place of practice is anywhere in Australia other than in New South Wales so that the appropriate review body in those circumstances is the Medical Board of Australia. (5) The practitioner shall pay the Health Care Complaints Commission's costs of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONAL DISCIPLINE – Health Practitioner Regulation National Law – Where practitioner concedes he is guilty of unsatisfactory professional conduct and professional misconduct – sexual relationship with patient and employee of the practitioner's practice. Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw 60 CLR 336; [1938] HCA 34 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Waddell No 1 [2012] NSWNMT 17 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Herron (2013) NSWMT Health Care Complaints Commission v Litchfield [1977] NSWSC 297 Health Care Complaints Commission v Underwood [2012] NSWMT Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Vitantonio Bracco (Respondent) Representation: Counsel: Dr H Bennett (Applicant) K Richardson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth (Respondent) File Number(s): 1620060 Publication restriction: An order is made under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law prohibiting the publication of the names of the three patients set out in the schedule to the complaints save and except to the parties to these proceedings.