Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Phillips v Osteopathy Council of New South Wales [2017] NSWCATOD 50 Hearing dates: 22 March 2017 Date of orders: 05 April 2017 Decision date: 05 April 2017 Jurisdiction: Occupational Division Before: The Hon F Marks ADCJ, Principal Member Dr K Murnane, Professional Member Dr T Stewart, Professional Member Dr J Milne, Community Member Decision: 1. Practice conditions imposed 2. Costs reserved Catchwords: Osteopath-appeal from practice conditions imposed by Council under sec 150 of the Health Practitioner Regulation National Law - accusations of improper sexual conduct- practice conditions varied to permit treatment of female patients with chaperone in certain circumstances. Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 HCCC v Litchfield (1997) 41 NSWLR 630 Category: Principal judgment Parties: Dr James Christopher Phillips (Applicant) Osteopathy Council of New South Wales (Respondent) Representation: Counsel: G Brady SC (Applicant) R Mathur (Respondent) Solicitors: W O'Brien and R Hudson (Applicant) C Campbell (Respondent) File Number(s): 2017/00017464 Publication restriction: Non-publication order relating to the identity of any patient of the appellant REASONS FOR DECISION Introduction 1. The appellant in these proceedings, Dr James Christopher Phillips appeals from a decision of the respondent the Osteopathy Council of NSW to impose practice conditions on his registration as an osteopath pursuant to section 150 of the Health Practitioner Regulation National Law ("the Act"). 2. Sections 150 of the Act is 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. The genesis of the appeal 1. The appellant conducted a practice as an osteopath from a clinic situated in the Sydney CBD as well as a practice from his home premises. The respondent was informed by NSW Police on 20 December 2016 that the appellant had been charged with one count of aggravated indecent assault and two counts of aggravated sexual assault occurring during the course of his treatment of a female patient at his home practice on the evening of 21 September 2016. The Council convened a hearing under section 150 of the Act conducted by delegates on 23 December 2016, gave the appellant an opportunity to make submissions, and issued written reasons for decision that day pursuant to which a number of practice conditions were imposed. Essentially, the appellant was prohibited from treating female patients and ancillary and consequential conditions were imposed requiring the appellant to disclose this prohibition to the public and to provide certain information to the Council. The appellant has appealed from this decision to this Tribunal under section 159 of the Act, which is in the following terms; 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 way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. 1. As is obvious from the provisions of subsection (3) of section 159, the appeal is by way of a rehearing of the matter. Accordingly, it is only necessary that we consider for the purpose of these proceedings such evidentiary material as was put before us by the parties, and, strictly, it is not necessary that we consider the reasons formulated by the delegates of the respondent because we must consider the matter afresh. However, we will later refer to one aspect of the decision in order to refine the formulation of the test to be applied as expressed by the delegates. The nature of Sec 150 proceedings 1. Proceedings under this provision are designed to allow a Council of a health profession to move quickly to either suspend or impose practice conditions on the registration of a health practitioner if it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, whether specified or not, or in the public interest. Indeed, if the Council is so satisfied it is mandatory for it to take that action. As will be seen, the Council is entitled to inform itself about any underlying factual circumstances without receipt of actual proof that a practitioner has engaged in behaviour or conduct justifying suspension or the imposition of practice conditions. 2. There is a discussion of the relevant principles applying to proceedings under section 150 in a decision of the Tribunal in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115. At [56] the Tribunal said; We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). (3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. (c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. (e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] – [18]: .... to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application.... In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary. 1. We adopt and will apply the principles set out in the extract from Crickitt set out above, modified to suit the circumstances of these proceedings. 2. In making these observations we should refer to the formulation of the test made by the delegates of the Council in their written reasons for decision, which were obviously published urgently on the day of the hearing, in circumstances where no doubt there was little time for detailed formulation of the reasons. In the course of their reasons for decision, the delegates said; "Council was mindful that in order to protect the public, it had an obligation to use the minimum regulatory force appropriate to manage the risk posed by the practitioner. For that reason, the Council was not satisfied the suspension of his registration was necessary." The reference to "the minimum regulatory force appropriate to manage the risk….." does not reflect the formulation of the test contained in the section which is directed to orders which the Council is satisfied are appropriate for the protection of the health or safety of any person or persons or otherwise in the public interest. The orders must respond to the conclusion of the satisfaction that it is appropriate to impose them for the stated reasons. The factual background 1. It is now necessary to deal with the factual circumstances disclosed in the documentary material which was placed before us. The appellant did not give oral evidence on the advice of Senior Counsel appearing for him, because criminal proceedings initiated by NSW Police have not yet been heard, and there was concern that the protection provided by section 128 of the Evidence Act would not be sufficient to protect the interests of the appellant in all the circumstances. 2. The clinical notes of the appellant indicate that he first commenced treating the patient, the subject of the police proceedings, on 13 April 2013. The patient is female and is aged in her late 30s. The clinical notes indicate that her last treatment was 21 September 2016. There is no indication in those notes of anything untoward having occurred on that occasion. Sometime shortly after that last consultation the patient made a complaint to NSW Police about what occurred at the consultation. Information provided by the appellant's solicitors is that on 16 December 2016 the appellant was asked to present himself to a police station which he did by arrangement three days later. On presentation, the appellant was charged with the three offences which we have previously briefly described. He is currently released on bail awaiting the determination of the criminal proceedings in the District Court, which is not expected to occur until late 2017 or early 2018. 3. Each of the charges alleges inappropriate conduct of a sexual nature by the appellant when treating the patient on 21 September 2016 between 8:30 PM and 9:30 PM at the premises which are attached to his residence. It is agreed between the parties that the conduct alleged, if proven, would not be conduct which would be carried out by any osteopath in providing therapeutic services to a patient. The appellant vehemently denies each of the charges and denies that he engaged in any inappropriate conduct, and in particular conduct of the kind alleged by the patient. 4. Information provided to the respondent by the appellant's solicitors by letter dated 22 December 2016 indicates that he has been practising as an osteopath since 2007. He denies any prior criminal history, and denied that any previous complaints have been made against him relating to either professional misconduct or unsatisfactory professional conduct. He was said to have a client base of around 900 patients and treated between 80 and 90 patients a week. He is said to have treated "thousands of female patients in his career, without complaint." 5. The appellant conducts a practice at premises in the Sydney CBD where he employs three casual staff. He also conducts a practice from his home premises after hours on weekdays, weekends and to provide emergency treatment. 6. There is documentation relating to a complaint made by a former employer of the appellant in 2010. The nature of that complaint has no relevance to the matters which need to be considered for the purpose of these proceedings. Both parties agreed that we should ignore this matter, and we shall do so. 7. On 1 August 2013 an osteopath who had worked with the appellant for a period of about two years made a notification to the respondent concerning the conduct of the appellant. It was alleged that the notifier had received reports from three unrelated female patients of "verbal comments and physical examination and manual treatment" by the appellant which constituted sexual professional misconduct. The events were said to have occurred approximately 10 years, five years and one week previously. The notifier asked that a copy of his notification not be forwarded to the appellant because he thought that the appellant would feel "very betrayed" by such a complaint having been made by a work colleague. The complaint was investigated by the respondent. It appears that at least one of the patients had been contacted and had declined to make a formal complaint. The respondent also noted that the complaint about conduct occurring approximately 10 years previously was prior to when the appellant was first registered to practice. The matter was referred to the Health Care Complaints Commission which, in consultation with the respondent, resolved to take no further action on the complaint "due to the lack of sufficient information provided." 8. On 23 January 2017 a young female person who was employed at the appellant's Sydney CBD practice made a complaint concerning the conduct of the appellant. She said that she was employed as a receptionist for the appellant and was studying remedial massage. During long breaks between patients the complainant said that "we usually do treatments on each other" for educational purposes. She said that the appellant was treating her and "at the end of the treatment he smacked my left buttock on bare skin, while I was laying in prone position." She said that she did not complain about the matter at the time because she did not want to prejudice her short-term employment at the clinic, although she asserted that she did forward a message about what happened to another receptionist. She resigned on 6 January 2017 without mentioning the matter to the appellant, nor the reason why she left his employment. This matter is currently under investigation by the Health Care Complaints Commission. Consideration 1. We are required by the provisions of section 150 of the Act to consider whether we are comfortably satisfied to the Briginshaw standard that it is appropriate to either suspend the registration of the appellant or impose practice conditions for the protection of the health or safety of his patients or in the public interest. Obviously, the conduct which is at the heart of these proceedings is confined to the appellant's treatment of female patients. 2. Whilst we are not bound by the rules of evidence, we acknowledge "that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner" (per Crickitt cited above). 3. It should be stated immediately that the conduct of the appellant alleged to have occurred on 21 September 2016 is of a most serious and egregious nature. If proven, it would arguably constitute professional misconduct. If it were not for the complaint made in January 2017 it might be considered as an unproven, untested single incident involving one out of many patients and which is vehemently denied by the appellant. However, the January 2017 incident which also has sexual connotations, albeit also unproven and untested is arguably of a similar kind. It is probably inappropriate to have regard to the other allegations made in 2013, because a determination was made that they should not be pursued. 4. Whether and to what extent an order should be made under section 150 of the Act involves the exercise of a value judgement made in the context of the legislative framework which we have described. We are of the opinion that having regard to the nature and extent of the misconduct which is alleged to have occurred in 21 September 2016, coupled with the nature of the complaint made in January 2017 that it is appropriate to invoke the provisions of sec 150. The September 2016 matter is being prosecuted before the District Court, and it may be assumed that a determination has been made that there is at the least an arguable case worthy of prosecution. 5. It is imperative that the public be protected from inappropriate conduct by health practitioners of a sexual kind. The NSW Court of Appeal had reason to comment on such misconduct committed by a medical practitioner in terms which apply equally to osteopaths in the following terms; Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest."( HCCC v Litchfield (1997) 41 NSWLR 630 at 638). 1. Until the complaints made against the appellant are dealt with, their gravity is such that it is appropriate that an order be made under section 150. So much was conceded by the appellant in the course of the proceedings. The nature of the protective orders 1. As it transpired, the controversy was narrowed considerably by the respective positions taken by each of the parties. Neither party submitted that suspension was appropriate. We agree with this approach, because any appropriate protective order must of necessity be confined to the treatment of female patients. The appellant contended that he should be permitted to continue to treat female patients in the presence of a chaperone. The respondent submitted that the existing regime should continue, namely that the appellant should not be permitted to treat any female patient. 2. The determination of what is an appropriate protective order must respond to the circumstances which create the need for the protection of the health or safety of any person, in this case female patients. If the formulation of practice conditions will create a treatment regime and protocols which will avoid any risk to the health or safety of a female patient, then those conditions will be appropriate conditions for the purpose of section 150. In our opinion, it is feasible to create chaperone conditions which will apply to the conduct of the appellant's practice at the CBD premises. There are other persons working at the premises, and this provides some protection for female patients when coupled with appropriate protective conditions.. 3. A great deal of discussion took place during the course of the hearing by way of dialogue between the parties and the Tribunal concerning what would be appropriate chaperone conditions. There was debate about whether the duties of any person retained to act as a chaperone should be dedicated and confined to that task, whether such a person should be an employee of the appellant (although obviously she would need to be paid by the appellant), whether the chaperone should be a registered health practitioner, and ancillary matters. In formulating practice conditions for the purpose of our decision, we have responded to the concerns of the parties, although, obviously, not favourably to each of those positions in each case. Hopefully, the manner in which we have formulated the conditions will make it clear to the parties how we have responded to the concerns expressed by them. 4. However, we are not persuaded that it is appropriate for the appellant to continue to treat female patients at his residential premises in circumstances where he does so out of regular hours and, presumably, with no other persons in the vicinity. There is a significant difference between the conduct of a practice in a CBD clinic or centre and that which is conducted from a residential home. In these circumstances the minimisation of the risk to the health or safety of female patients can only be appropriately addressed by precluding the appellant from treating female patients at his home. We intend to continue the existing regime for treatment undertaken at this location. 5. Obviously, if the circumstances of the appellant change by the reason of the location from which he conducts any practice as an osteopath, it may be necessary for some modification of the practice conditions. We intend leaving this to the discretion of the Council, hopefully guided by the approach which we have taken to the determination of these proceedings by reference to the two differing practice locations. 6. The practice conditions which we impose are set out hereunder. 7. The parties asked that we reserve costs, and we shall do so with liberty to apply. Orders 1. We make the following orders; 1. the Practice conditions set out below are imposed on the registration of the appellant with effect seven days from this date 2. costs are reserved with liberty to apply which should be exercised within one month of this date. Practice conditions – Dr James Christopher Phillips A. With respect to any treatment carried out from non-residential commercial or business premises within which persons are also performing work as health care providers at the same time as the practitioner: 1. not to consult, assess, examine, treat or perform any procedure on any female patient unless a female chaperone approved by the Osteopathy Council of NSW ("Council approved chaperone") is continuously present and visually observes the practitioner and the female patient at all times. 2. the practitioner must nominate in advance a female person or persons for consideration by the Council for approval to be engaged as a chaperone under this condition. Such persons must not be a relative or business partner of the practitioner or have a close personal relationship with the practitioner. 3. the persons so nominated as a chaperone may not be engaged as a chaperone until and unless approved by the Council 4. the Council approved chaperone must be specifically engaged for the purpose of this condition, and must not carry out any other duties or attend to any other matters whilst the practitioner is treating the patient 5. the Council approved chaperone must acknowledge in writing by signing the Chaperone Log specified by the Council that she is engaged for this purpose, and is aware of her obligation to be continuously present and to visually observe the consultation 6. the practitioner must ensure that at the time of making an appointment, all female patients and their carers and guardians are informed of the requirements of the Council for a female chaperone to be continuously present and the reasons therefor. The patient must be given the opportunity to decline the appointment, in which event the practitioner must not proceed with any consultation, assessment, examination, treatment or procedure and must provide a referral to another osteopath or other health practitioner 7. the practitioner must ensure that a female patient who is to receive treatment pursuant to this condition is provided with a copy of this condition upon arrival at the practice before treatment commences and signs an acknowledgment in the form of the Chaperone Log prescribed by the Council that she is aware of the reason for the appointment of the chaperone and consents to the consultation occurring in the presence of the chaperone. The practitioner must not treat the patient in any way unless and until such acknowledgment is provided 8. the practitioner is to ensure that the chaperone and all female patients complete the Chaperone Log in the form prescribed by the Council and that the original form of Log is forwarded to the Council within 7 days following the conclusion of each consecutive fortnightly period, the first of such period commencing on the date that the Council approves the chaperone or the first chaperone. 9. the practitioner must provide the Council within 7 days of the imposition of this condition of details of all locations where he currently practices as an osteopath, the details of any person or organisation that engages him to work as an osteopath and details of any new location or new person or organisation prior to commencing work at the new location or for the new person or organisation. 10. the practitioner must notify the principal of any practice and any other health practitioners (whether registered or not) working at the practice of the provisions of this condition. The practitioner must forward to the Council within 7 days of the imposition of this condition or within seven days of commencing employment or engagement a copy of this condition signed by all such principals and health practitioners. 11. the practitioner must meet all costs associated with complying with this condition B with respect to any treatment carried out at the residence of the practitioner or any premises not falling within the description of premises referred to in A above 1. the practitioner is not to treat female patients in any capacity 2. the practitioner is to place a notice in a prominent position in his clinic waiting room stating "Conditions have been imposed upon the registration of Dr James Christopher Phillips, osteopath, that he not treat female patients in any capacity from these premises." The sign is to be in no less than 24 point on A4 size paper. 3. the practitioner is to place the following material on the homepage of his clinic website, (www.marqueehealth.com.au) or any other website replacing that website stating "Conditions have been imposed upon the registration of Dr James Christopher Phillips, osteopath, that he not treat female patients in any capacity from premises other than at (the current address of the CBD practice complying with the provisions of A above), and that such treatment can only be afforded to a female patient at (the address) in the presence of a female chaperone." C with respect to all treatment afforded to all patients: 1. at the end of each week the practitioner is to provide the Council with a record of all patients seen during that week including details of the date, time and location of each consultation, the name of each patient, the nature of the consultation and the name of the health fund and Medicare number of the patient 2. at the end of each month the practitioner is to provide the Council with a photocopy or electronic copy of the appointment schedule for that month to facilitate reconciliation of the weekly returns 3. the practitioner is to authorise and consent to any exchange of information between the Council and registered health funds and Medicare Australia for the purpose of monitoring compliance with these conditions 4. the practitioner is to submit to an audit at any place where he conducts his practice or treats patients or other premises where patient records are maintained to be carried out at his expense by a person or persons nominated by the Council. D Generally, 1. These conditions may be modified, varied or altered by the Council at any time upon becoming aware of any significant alteration to the circumstances of the practitioner so as to meet the exigencies of any significantly changed circumstances, after having given notice to the practitioner of the proposal to make any such modification, variation or alteration and the reasons therefor, and after allowing the practitioner to make representations thereon and giving any such representations due consideration. 2. These conditions shall remain in force until modified, varied or altered by the Council in accordance with paragraph D1 above or until otherwise removed by the Council or the NSW Civil and Administrative Tribunal. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2017