Health Care Complaints Commission v Petros [2019] NSWCATOD 83

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Petros [2019] NSWCATOD 83 Hearing dates: 1, 2, 3, 4, 5 April 2019; 6 May 2019 Date of orders: 28 May 2019 Decision date: 28 May 2019 Jurisdiction: Occupational Division Before: D Cowdroy OAM QC ADCJ, Principal Member Dr M Nicholl, Senior Member Dr J King, Senior Member S Lovrovich, Community Member Decision: 1. Order that if the respondent were still registered: -

i. Pursuant to section 149C (4) (a) of the National Law if the respondent were still registered his registration would have been cancelled;

ii. Pursuant to section 149C (4) (b) the respondent be disqualified from being registered as a medical practitioner for two years;

iii. Pursuant to 149C (4) (c) of the National Law the National Board record that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board;

iv. Pursuant to section 149C (7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for a period of two years

v. Pursuant to section 163 of the National Law the Tribunal is the appropriate review body for any review of these orders;

2. The respondent is to pay the costs of the applicant and incidental to these proceedings.

3. The publication of the name of any patient referred to in this decision be prohibited. Catchwords: PROFESSIONS AND TRADES – health care professionals – medical practitioners – disciplinary proceedings – intellectual property in device used in pelvic floor surgery – practitioner having financial interest through family trust and company structures in the device - device used in operative procedures – patients not informed by the practitioner that he was and that he had a financial interest in such device – practitioner failing to inform Medical Advisory Council (MAC) of private hospital where he was granted operating rights of his financial interest in the device - registration of device cancelled by the Australian Therapeutic Goods Authority – practitioner continuing to use device in operative procedures without informing patients of financial interest and of the fact of cancellation on the Australian Therapeutic Goods Registrar of the registration of the device – Medical Malpractice – practitioner supervising surgery – complications in surgery resulting in urgent transfer of patient to a public hospital – practitioner failing to provide information to the receiving medical staff at the hospital that the patient had undergone surgery involving the use of the device Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Commissioner of Taxation v Bamford [2010] HCA 10 FTZK v Minister for Immigration and Border Protection [2014] HCA 26 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 O'Connell v Palmer (1994) 53 FCR 429 R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Peter Petros (Respondent) Representation: Counsel: