Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Farrell [2018] NSWCATOD 21 Hearing dates: On the papers Date of orders: 20 February 2018 Decision date: 20 February 2018 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member D O'Kane, Senior Member A Scott, Senior Member Dr P Macneill, General Member Decision: (1) The registration of the respondent is cancelled. (2) The respondent is not entitled to reapply for registration until after the expiry of 12 months from the date of this order. (3) The respondent is to pay the applicant's costs. Catchwords: TRADES AND PROFESSION – Health Practitioner Regulation National Law – Medical Radiation Practice (Radiology) – objectives and principles of the National Law – protective orders where complaints of unsatisfactory professional conduct, professional misconduct, impairment, competence and having a criminal conviction established Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Health Practitioner Regulation National Law NSW No 86a Cases Cited: Health Care Complaints Commission v Farrell [2017] NSWCATOD 160 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Matthew Farrell (Respondent) Representation: Counsel: V Hartstein (Applicant) No Appearance (Respondent) File Number(s): 2017/000173270 Publication restriction: Nil REASONS FOR DECISION 1. This matter was heard on 19 October 2017. In our reasons of 6 November 2017, Health Care Complaints Commission v Farrell [2017] NSWCATOD 160, (the primary decision) we found that each of Complaints One, Two, Three, Four and Five were established. 2. These were complaints of unsatisfactory professional conduct, professional misconduct, impairment, competence and having a criminal conviction. The details of each complaint are fully set out in the primary decision, along with our findings: see [22] to [55]. There is no need to repeat those matters again. 3. We did not find Complaint Six (suitability) to be established. 4. At the hearing on 19 October 2017, the Commission submitted that, even if only Complaint Two (namely professional misconduct) was established, the Tribunal should cancel the applicant's registration and order that he not be entitled to apply for a review of that order for a minimum period of one year. 5. As the respondent did not attend the hearing on 19 October 2017, the Tribunal directed at the conclusion of the hearing that the respondent provide submissions after receipt of these reasons as to the appropriate protective orders. The Tribunal also directed that those submissions deal with costs. 6. No submissions were filed by the respondent. 7. We set out at pars [100] to [103] of the primary decision the guiding principles in such determinations. Again, we will not repeat the matters set out in the primary decision. The Commission submits that the proper application of those principles is that the respondent's registration be cancelled, and that he not be permitted to reapply for registration for a period of 12 months. 8. We agree. As we noted in the primary decision, the paramount consideration is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]; and the jurisdiction is not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In the exercise of this protective jurisdiction, the Tribunal is required to take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the that profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. 9. The purpose of the proceedings include the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340, not to punish the respondent, and to protect the public and to maintain proper standards in the chiropractic profession: Clyne v New South Wales Bar Association [1960] HCA 40; Prakash v Health Care Complaints Commission [2006] NSWCA 153; 10. The test for cancellation of a practitioner's registration "is whether the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18]; Health Care Complaints Commission v Ahmad [2015] NSWCATOD . 11. The Commission was successful in establishing that: 1. The respondent was guilty of unsatisfactory professional conduct, in that he failed to attend for urine drug testing (UDT), in breach of a condition on his registration that he do so, on 14 occasions; 2. The respondent was guilty of professional misconduct, in that the 14 failures to attend for UDT was unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration. The Tribunal found that that conduct showed a repeated and a persistent disregard of the Medical Radiation Council's conditions, and a lack of insight by the respondent of his responsibilities; 3. The respondent was impaired, in that he suffers from substance misuse and addiction and meets the Diagnostic and Statistical Manual 5 diagnostic criteria for Alcohol Use Disorder of moderate severity and Stimulant (methamphetamine) Use Disorder (severe); 4. The respondent lacked competence to practise his profession of medical radiation; 5. The respondent had a criminal conviction, namely that the respondent was convicted at the Local Court on 22 February 2016 of possessing a prohibited drug, namely 0.6 grams of methylamphetamine pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 1. In our view, each of Complaints One (unsatisfactory professional conduct), Two (professional misconduct), Four (competence) and Five (having a criminal conviction) warrant an order of deregistration. The conduct the subject of each of those complaints is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In addition, when the instances of unsatisfactory conduct are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 2. A finding of impairment of itself does not empower the Tribunal to suspend or deregister a practitioner. The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied that: 1. The practitioner is not competent to practise the practitioner's profession; or 2. The practitioner is guilty of professional misconduct; or 3. The practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or 4. The practitioner is not a suitable person for registration in the practitioner's profession; see s 149C of the National Law. 1. However, we consider that Complaint Three (impairment) in combination with any of Complaints One, Two, Four or Five warrants an order of deregistration. Costs 1. As we noted in the primary decision, as a general rule, the costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45]. See too Qasim v Health Care Complaints Commission [2015] NSWCA 282; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182. 2. The Commission has been successful in establishing five of its six complaints against the respondent. The respondent must pay the Commission's costs. The Commission was unsuccessful in establishing Complaint Six. However, Complaint Six occupied very little of the hearing, so we do not consider that there should be any reduction in the costs to be paid to the applicant. Orders and directions 1. For the reasons appearing above, the Tribunal finds and orders that: 1. The registration of the respondent is cancelled. 2. The respondent is not entitled to reapply for registration until after the expiry of 12 months from the date of this order. 3. The respondent is to pay the applicant's costs. ​ ********** ​​ 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: 20 February 2018