Medical Council of NSW v Ghannoum [2018] NSWCATOD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Medical Council of NSW v Ghannoum [2018] NSWCATOD 6 Hearing dates: 4 December 2017 Date of orders: 05 January 2018 Decision date: 05 January 2018 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ (Principal Member) Dr S Gani (Senior Member) Dr P Anderson (Senior Member) A/Prof P Macneill (General Member) Decision: 1. The respondent practitioner's registration as a medical practitioner is cancelled.

2. The respondent may not apply for review of the decision until after 11 January 2018.

3. The respondent must pay the costs of the Medical Council of or incidental to these proceedings as agreed or assessed. Catchwords: Medical Practitioner – Disciplinary Proceedings – Breach of Critical Compliance Condition of Registration – registration cancelled. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Medical Board of NSW -v- JJ Martin Medical Tribunal of NSW No. 40030 of 2009 (Unreported) Category: Principal judgment Parties: Medical Council of NSW (Applicant) Wael Ghannoum (Respondent) Representation: Counsel: Ms P Lowson (Applicant )

Solicitors: Medical Council NSW (Applicant ) Respondent in Person File Number(s): 2017/00262717 Publication restriction: Nil

reasons for decision

Introduction 1. These were proceedings commenced by a complaint and application to the Tribunal alleging that the respondent medical practitioner breached a critical compliance condition of his registration. 2. The condition was imposed on the practitioner's registration by order of the Tribunal of 8 February 2016. It required the practitioner to "attend at least one (1) Continuing Medical Education Course each month whilst registered to practice". 3. The complaint alleged that the practitioner failed to attend any Continuing Medical Education Course in each of the months of December 2016 and January 2017. The practitioner admitted that allegation. 4. The applicant, in the application filed 18 August 2017, seeks an order for the respondent's registration as a medical practitioner to be cancelled. The Tribunal acceded to that application and these are the reasons. 5. Relevant Law 6. Section 149A of the Health Practitioner Regulation National Law (NSW) ("the National Law") (1)(b) gives the Tribunal power to impose conditions it considers appropriate on a practitioner's registration. Sub section 149A(4) provide that if the Tribunal makes an order or imposes a condition on a practitioner's registration, it may order that a contravention of the order or condition will result in the practitioner's registration being cancelled. Sub section 149A(5) provides that such an order or condition is then a "critical compliance order or condition". 7. The relevant condition imposed by the orders of 8 February 2016 is in order No.3 imposing conditions on the practitioner's registration and the precise sub-paragraph is 3.5(iii) providing that he must "attend at least one Continuing Medical Education Course each month whilst registered to practice". 8. Order (7) of the orders of 8 February 2016 provides that the conditions specified in various provisions of the orders, including 3.5(iii), are "critical compliance conditions, contravention of which will result in the respondent's registration being cancelled." 9. Ten (10) months after the orders of 8 February, the practitioner contravened the condition by failing to attend any Continuing Medical Education Course in December 2016. He again contravened the critical compliance condition in January 2017 by failing to attend any Continuing Medical Education Course that month. 10. Sub section 150(3) of the National Law provides:- "If a Council for a health profession is satisfied a health practitioner or a 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." 1. Delegates of the Council conducted a hearing on 11 July 2017 into the issue of whether the practitioner had contravened the condition of his registration requiring him to attend at least one Continuing Medical Education Course each month whilst registered to practice. The Council, by its delegates, decided that the practitioner had breached the critical compliance condition in December 2016 and January 2017. Pursuant to sub section 150(3) of the National Law, the Council therefore suspended the practitioner's registration and referred the matter to the Tribunal as a complaint, these steps by the Council of suspending the practitioner's registration and referring the matter to the Tribunal as a complaint were as required by the National Law. 2. The powers of the Tribunal dealing with the complaint are specified in sub section 149C(3) of the National Law which provides:- "(iii) The Tribunal must cancel a registered health practitioner's or student's registration of the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition."