Health Care Complaints Commission v Tan (No.2) [2017] NSWCATOD 107

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tan (No.2) [2017] NSWCATOD 107 Hearing dates: On papers 5 June 2017 Date of orders: 05 July 2017 Decision date: 05 July 2017 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ – Principal Member Dr S Mares – Professional Member Dr P Anderson – Professional Member Mr Robert Kelly – General Member Decision: The respondent practitioner is prohibited for 5 years from 2 September 2016 from providing any health services. Catchwords: Medical Practitioner – Psychiatrist – Discipline – Sexual Assault of patients – Cancellation of Registration – Prohibition from providing any health services during a period of 5 years. Legislation Cited: Health Practitioner National Law (NSW) ("The National Law") Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission – Applicant Ong Min Tan – Respondent Representation: Counsel: R Mather (Applicant) M Ainsworth (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Respondent) File Number(s): 1520128 Publication restriction: Publication or Broadcast of the name or other identifying information of any patient referred to in these proceedings without the leave of the Tribunal is prohibited.

reasons for decision

Introduction 1. In these proceedings, matters were determined and reasons given in the judgement and orders published on 2 September 2016. 2. In those orders, the registration of the respondent practitioner, a psychiatrist, was cancelled for a period of 5 years. 3. Sub-paragraph149C(5)(a) provides "that where the Tribunal suspends or cancels the registration of a health practitioner and is satisfied the person poses a substantial risk to the health of members of the public, made by order (a prohibition order) prohibits the person from providing health services or specified health services for the period specified in the order or permanently". 4. The applicant seeks such an order for the period of the cancellation or indefinitely. 5. No order under subpara 149C)5)(a) was specified in the application as an order being sought. 6. When the matter was set down for hearing on the papers by Deputy President on 13 November 2016, it was noted that the practitioner admitted all particulars of the complaint. 7. It was further noted that "the HCCC are seeking the practitioner be disqualified from applying for registration but is in dispute with the practitioner's solicitors about the period before which he can seek a review application of the Section 163A of the Health Practitioner Regulation National Law". 8. It was also noted that the HCCC was seeking "a prohibition order". 9. Directions were made for the filing of material by both parties. 10. The applicant's submissions filed on 18 December 2016 in paragraph 6 state that in addition to disqualification of the respondent's registration, it seeks "a prohibition order" and refers to other provisions, including "149C(5A)", which it appears is a typographical error and should be a reference to Section 149C(5)(a). 11. In the same submission at paragraph 42 the applicant sets out the orders it seeks and at paragraph 42(vi) clearly seeks "pursuant to Sec 149C(5) an order prohibiting the respondent from providing health services or specified health services for the period specified in the order". 12. In the submissions in reply prepared by the respondent practitioner's counsel and solicitors and filed on 1 February 2016, the practitioner referred to the submissions of the applicant and paragraph 1.3 states "the respondent is agreeable to the orders sought by the Health Care Complaints Commission save for the duration of the non-application period and orders in relation to costs". 13. At paragraph 12.2, the practitioner also set out the orders he proposed, and they include as item (d) "pursuant to Section 149C(5) of the National Law an order prohibiting the respondent from providing health services or specified health services for the period specified in the order". 14. In its orders and reasons of 2 September 2016, the Tribunal failed to address or determine the application of the Health Care Complaints Commission for a prohibition order under paragraph 149C(5)(a) of the National Law. 15. In September 2016 and January 2017, the solicitor for the HCCC wrote to the registrar of the Tribunal raising the omission. Unfortunately, when the matter was referred to the presiding member, on both occasions the wrong email address was used and the omission did not come to the attention of the Presiding Member until May 2017. 16. The HCCC letter of 16 September advises that "the respondent's legal representative has informed the Commission that the respondent consents to the application seeking to have the Tribunal to (sic) make the order or deal with the issue of the prohibition order." 17. The Tribunal has now considered the application for a prohibition order and is satisfied on the basis of the findings in the decision of 2 September 2016 that the respondent practitioner poses a substantial risk to the health of members of the public and, similarly on the basis of the findings of 2 September 2016, there should be a prohibition order prohibiting the practitioner from providing health services and that the prohibition should be for a period of 5 years, which is the same period as the cancellation. 18. The Tribunal is satisfied that such an order should be made for the protection of the public and has had regard also to the fact that the respondent practitioner also proposed an order of that nature.