Health Care Complaints Commission v Sare [2018] NSWCATOD 190

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Hearing dates: 9, 10, 11, 12, 13, 16 and 17 July 2018 and by written submissions dated 23 August 2018, 10 September 2018 and 12 September 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr P McInerney, Senior Member Dr J Fogarty, Senior Member C Gardiner, General Member Decision: 1. Dr David George Sare (the practitioner) is reprimanded. 2. The practitioner's registration is subject to the following conditions: (a) The practitioner is not to practise in a public or private hospital for a period of two years from the date of these orders unless the Medical Council of NSW (the Council) on a review of these conditions otherwise determines. (b) The practitioner must advise the Council in writing at least seven days prior to changing his place of employment. (c) If practising in general practice, the practitioner is to practise only in an accredited group practice where there are at least 2 vocationally registered general practitioners (excluding the subject practitioner), and: (i) where there is always one other registered medical practitioner on site; and (ii) where patients and patient records are shared between the medical practitioners. (d) The practitioner is to authorise and consent to any exchange of information between the Council and current and any future persons or organisation at any place where the practitioner works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. (e) within fourteen days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Council that he has provided a copy of his full conditions to the Principal of the practice. (f) the practitioner is, within 21 days of the date of the Tribunal's decision, to nominate to the Council an experienced registered general practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentoring (as varied from time to time). (i) the practitioner is to meet face to face with the mentor on not less than a three monthly basis, commencing no later than February 2019. (ii) each meeting of the practitioner and the mentor is to include discussion of boundary crossing issues and ethical issues arising in general practice. (iii) the practitioner is to authorise the Council to provide proposed and approved mentors with a copy of the Tribunal's reasons for decision published 28 November 2018. (iv) the practitioner is to be mentored for a minimum period of one year and as subsequently determined by the Council. 3. The conditions set out in Order 2 of these orders may be altered, varied or removed at the discretion of the Council, and the Council is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). 4. Sections 125 and 127 of the National Law are to apply if the practitioner's principal place of residence is anywhere in Australia other than New South Wales and a review of the conditions set out in Order 2 of these orders can be conducted by the Medical Board of Australia. 5. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed, or, failing agreement, as assessed under the provisions of the Legal Profession Uniform Law Application Act (NSW) 2014. Catchwords: PROFESSIONS AND TRADES – Health Professional – registered health practitioner – where is it asserted practitioner has engaged in improper and unethical conduct – whether practitioner's record keeping inadequate – whether practitioner's clinical care of four patients was significantly below standard Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Family Law Act 1975 (Cth) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Health Practitioner Regulation (NSW) Regulation 2010 (repealed) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Litchfield [1997] NSWCA 264; (1997) 41 NSWLR 630 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 Texts Cited: Macquarie Dictionary Medical Board of Australia, "Good Medical Practice: A Code of Conduct for Doctors in Australia", 2014 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr David George Sare (Respondent) Representation: Counsel: A Britt (Applicant) P Griffin SC (Respondent)