Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cooke v Medical Council of NSW (Stay Application) [2019] NSWCATOD 144 Hearing dates: 13 September 2019 Date of orders: 13 September 2019 Decision date: 16 September 2019 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: (1) The application for a stay is refused. (2) The application for a non-publication order in respect of Jason Brendan Cooke (the practitioner) is refused. A non-publication order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the patient named in the material relied by the Medical Council of NSW. (3) The appeal is expedited. (4) The practitioner is to give to the other party, any material on which that party relies on or before 20 September 2019. (5) Medical Council of NSW is to give to the other party the following material: a Reply on or before 27 September 2019. (6) Medical Council of NSW is to give to the other party, any material on which that party relies on or before 27 September 2019. (7) The practitioner is to give to the other party the following material on or before 04 October 2019: all material in reply (if any). (8) Both parties are to give to the Tribunal 5 copies of all their material and 4 USBs containing that material on or before 04 October 2019. (9) The appeal is listed for hearing on 12 November 2019 at 10am at John Maddison Tower, 86-90 Goulburn Street Sydney. (10) The reasons for the decision on the Stay application are reserved. Catchwords: PROFESSIONS AND TRADES – health practitioner, registered medical practitioner – application for a stay pending the hearing of an appeal on a point of law – jurisdiction to hear stay – application refused – non-publication order in respect of practitioner refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 DZR v Medical Council of NSW [2019] NSWCATOD 143 Hill v Medical Council of NSW [2019] NSWCATOD 52 Medical Council of NSW v Lee [2017] NSWCA 282 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Category: Procedural and other rulings Parties: Dr Jason Brendan Cooke (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: I Fraser (Applicant) Solicitors: HWL Ebsworth (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2019/00273248 Publication restriction: Pursuant to cl 7 of Schedule 5D of the Health Practitioner Regulation National Law an order is made prohibiting the publication of the name of the patient referred to in the material before the Medical Council of NSW. REASONS FOR DECISION Introduction 1. The application before me is an application for a stay of two conditions imposed on the registration of Dr Jason Brendan Cooke (the practitioner) by the Medical Council of NSW (the Council) effective from 5 August 2019. The stay is sought pending the hearing and determination of appeals by the practitioner agitated under s 159 and s 159B of the Health Practitioner Regulation National Law (the National Law). The two conditions prohibit the practitioner from possessing or supplying any "drug of addiction" (a Schedule 8 drug) and any Schedule 4 drug "listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW)", and require him to surrender his authority to prescribe such drugs. 2. No detailed reasons have been provided by the Council for the imposition of the two conditions, the subject of the stay application, on the practitioner's registration. Jurisdiction to hear this application 1. On 2 September 2019 the practitioner filed an appeal against the two additional conditions imposed on his registration on 5 August 2019. On the same day, the practitioner filed the stay application. 2. I am asked to hear and determine the stay as an interlocutory application (see s 165B(5A) of the National Law). 3. It is not in dispute that this Tribunal has no jurisdiction to grant a stay pending an appeal under s 159 of the National Law (see Medical Council of NSW v Lee [2017] NSWCA 282). I can hear and determine a stay in respect of an appeal on a point of law. 4. The grounds of appeal relied on in support of an appeal under s 159B are set out in the External Appeal Form as follows: (a) There is no evidence on which it was open to the Medical Council to be satisfied that it was appropriate to impose the second set of more onerous conditions. (b) The decision is so unreasonable, illogical and irrational that it is wrong in law. 1. In DZR v Medical Council of NSW [2019] NSWCATOD 143 I set out the guidance in the authorities on the phrase "point of law" as follows: The phrase "point of law" has been subject of consideration in the Court of Appeal. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [15]-[16] Basten JA explained: In Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [124], Spigelman CJ (Priestley JA agreeing), after noting that the phrase in consideration in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 137 used the formulation "point of law", not "error of law", continued: "The expression 'question' or 'point' of law is wider than 'error of law'." The different formulations to which his Honour referred may need to be read in context in order to identify their differential effect. Thus, the provision in issue in Attorney-General (NSW) v X was the power of the Attorney to submit "any question of law arising from or in connection with" contempt proceedings, to the Court of Appeal: Supreme Court Act 1970 (NSW), s 101A(1). The provision in question in Azzopardi was one conferring a right of appeal on a party to proceedings in the Workers Compensation Commission who was "aggrieved by any award, order, ruling, direction or decision of the Commission, in point of law or in relation to the admission or rejection of any evidence": Workers' Compensation Act 1926 (NSW), s 37(4)(a) (as in force prior to the Workers' Compensation (Amendment) Act 1984 (NSW). Other provisions confer a right of appeal "on any question of law arising out of an award", being the language of the Commercial Arbitration Act 1984 (NSW), s 38(2). In the present case, the right of appeal lay against "a decision of the Tribunal with respect to a point of law". There may be some ambiguity as to whether it is the appeal or the decision which must be with respect to a point of law: however, to require the identification of a decision with respect to a point of law would so limit the operation of the provision as to render the construction untenable, in the absence of clear authority requiring that approach. As already noted, the authority is to the contrary. Accordingly, it is sufficient if the Appellant can identify a decision of the Tribunal which, if it is not the ultimate decision is material to it, and that the decision was erroneous in point of law. Basten JA, with whom Allsop P agreed, in CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [86]-[91] discussed the meaning of the phrase "point of law" as it applied to an appeal to the Court from the Dust Diseases Tribunal. At [89] his Honour explained: The scope of phrases such as "question of law", "point of law" and "error of law" is less clear. Guidance may be obtained from the established grounds of judicial review, but these are often stated in terms of categories (of which error of law is one) which are notoriously imprecise and which overlap. Nor does the analogy with judicial review allow for the constraint in legislation which requires identification of a decision of the tribunal below on a question, or in point, of law. It may also be erroneous to assume that such an error is to be equated with the kind of error which would permit interference with a discretionary decision, in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499 at 505. 1. As in DZR, I discern that the "point of law" to be agitated in the appeal (and which, if properly made, to ground jurisdiction to hear this stay application) is that there was no evidentiary basis for the delegates' decision, and/or that it was unreasonable in the sense that word is used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (see also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611). 2. In DZR v Medical Council of NSW at [50]-[51] I also referred to the relevant statements by the Master of the Rolls, Lord Greene, in his speech in Wednesbury as follows: His Lordship explained: When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. When considering what is meant by acting reasonably his Lordship stated: For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might also be described as being done in bad faith; and, in fact, all these things run into one another. Relevant statutory provisions 1. The object and guiding principles of the National Law are found in s 3 and s 3A (the latter being a NSW provision). Those provisions which guide and inform decision making under the National Law are as follows: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for- (a) the regulation of health practitioners; and (b) the registration of students undertaking- (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note. This section is an additional New South Wales provision. 1. The conditions imposed in this matter were imposed under s 150C of the National Law. That provision is in the following terms: 150C Power to remove or alter conditions or end suspension [NSW] (1) A Council may, at any time— (a) end a period of suspension imposed by the Council under this Subdivision; or (b) alter or remove conditions imposed under this Subdivision. (2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time of taking the original action. (3) The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned. 1. The National Law requires when a matter is heard under s 150, that the delegates of the Council conform to the composition requirements in s 150(7). That provision is as follows: (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who— (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. This composition requirement is not mandatory at a hearing under s 150C. I note that in dealing with a complaint the provisions of s 41G of the National Law are relevant. Section 41G provides as follows: 41G Councils' complaint functions may be exercised by 2 or more members [NSW] (1) A Council may appoint any 2 or more members of the Council to exercise the functions of the Council under Division 3 of Part 8. (2) The referral of a complaint by the members appointed is taken to be a referral by the Council. 1. The practitioner's appeal is under both s 159 and s 159B of the National Law. Those provisions are as follows: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession— (a1) against a reprimand by the Council for the health profession under Division 3; (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. 1. Section 159B is as follows: 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of. 1. Two further provisions of the National Law are relevant to the granting of a stay. They are: 161B Appeal does not stay decision [NSW] An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders. 165L Interlocutory orders [NSW] (1) …. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) … Relevant principles to be applied in determining a Stay Application 1. In Hill v Medical Council of NSW [2019] NSWCATOD 52 I referred to the relevant principles to be applied in determining an application for a stay at [21] as follows: The relevant principles in a protective jurisdiction are succinctly summarised by Professor Millbank in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [11]-[12] as follows: There is a wealth of general guidance on principles to be considered in exercising a stay power: Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84. In the context of this Tribunal, Wright J on behalf of the Appeal Panel summarised such principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as including: (1) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (2) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (3) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. (4) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (5) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (6) The overriding principle in an application for a stay is to ask what the interests of justice require. These general principles must be considered and applied within the specific context of the National Law, in particular the object and guiding principle expressed in s 3(2)(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, and the paramount consideration of the protection of the health and safety of the public in s 3A: Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77. Chronology 1. This chronology is taken from the written submissions provided by the Council. I confirmed with the parties the accuracy of the events set out in the submissions. 2. In October 2018 the Pharmaceutical Regulatory Unit (PRU) made a complaint. I infer the complaint was made to the Council. The complaint alleged the practitioner had been observed by a pharmacist to have "slurred speech, glassy eyes and a staggering gait" when he collected prescriptions and on one occasion was "so confused and off his face" he left the pharmacy without his prescription or paying for it. The practitioner disputes these allegations. The PRU report is also alleged to have reported that the practitioner prescribed drugs for a close family member including 10 prescriptions for Oxycodone, and presented prescriptions for oxycodone and alprazolam "For doctor's use only". I infer purportedly for the practitioner's "doctor's bag", and failure to keep a drug register. 3. On 28 November 2018 the Council convened proceedings under s 150 of the National Law. After the hearing, on 3 December 2018 positive drug tests undergone by the practitioner were received by the Council showing use of cocaine. The practitioner subsequently conceded he had used a "small amount of cocaine" at music festivals in 2018 and ecstasy at a festival while overseas in July 2018. 4. On 10 December 2018, following the hearing under s 150 of the National Law, four conditions were recorded on the register maintained by the Australian Health Practitioner Regulation Agency (AHPRA). In broad terms the conditions required the practitioner to practise in accordance with guidelines for self-treatment and treatment of relatives, to advise the Council of any change in the nature or place of the practitioner's practice and to provide authority for exchange of information between the Council and Medicare. A mentoring condition was also imposed as were health conditions. These included a requirement for regular urine drug screens and hair drug screens. 5. On 20 April 2019 the practitioner's Council appointed psychiatrist diagnosed the practitioner as meeting the criteria "for stimulant use disorder – mild type, due to the presence of 2 to 3 symptoms outlined in the DSM 5". The psychiatrist also reported "good evidence of early remission given his drug screens have been negative for the duration of the last 3 months and his most recent hair test which was completed on 2nd of February 2019, shows the presence of trace amounts of cocaine and benzoylecgonine albeit a level below what would normally be reported". The psychiatrist recommended that the practitioner should enter the Impaired Registrants Panel (IRP) and continue thrice weekly urine testing and ongoing quarterly hair testing. 6. On 5 May 2019 the practitioner attended an interview conducted by the Council delegates Dr A Demirkol and Dr G Dore to review the conditions imposed on his registration on 10 December 2018. The reviewers discussed the hair screen results of 15 February 2019 and noted the report was "No drugs detected". The reviewers also recorded: Dr Atherton (the council appointed psychiatrist) has recommended no change to Dr Cooke's current conditions and the the [sic] Reviewers agree. 1. The reviewers recommended no change to the current conditions. 2. On an unspecified date, the Council referred the complaint to the Health Care Complaints Commission (HCCC). The HCCC conducted an investigation and on 11 July 2019 determined to take no action and referred the matter back to the Council under s 39(1)(c) of the Health Care Complaints Act 1993 (NSW) to be dealt with under the provisions of the National Law such as the referral of the health practitioner for performance assessment or impairment assessment. 3. On 9 July 2019 the two members of the Council resolved: 1. That an Impaired Registrants Panel be convened, ensuring the IRP is made aware of the Council's concerns that no conditions concerning the practitioner's prescribing and handling of Schedule 8 and Schedule 4D drugs were previously imposed. 2. To convene s 150C proceedings "on the papers". 1. On 18 July 2019 the Council wrote to the practitioner by letter addressed to his solicitors and notified him of the intention to maintain the existing conditions and to add the conditions the subject of the present appeal. 2. On 25 July 2019 two Council members considered written submissions from the practitioner's solicitors. Notwithstanding the submissions received, the two Council members determined it was appropriate to "re-impose" the earlier conditions and additionally the restrictions on prescribing drugs of addiction. . No face to face hearing was conducted and the two Council members determined the matter "on the papers". Reasons for the Council's decision for the imposition of the conditions have not been provided to the practitioner. 3. On 5 August 2019 Dr Stephen Buckley and Ms F Taylor, being the two relevant Council members, determined: Under s 150C re-impose all 14 current practice and health conditions plus the two additional conditions below and refer Dr Cooke to an Impaired Registrants Panel under s 150F subject to consultation with the HCCC. 1. Under the heading "Comment/Reasons" Dr Buckley and Ms Taylor noted: The Full Committee was strongly of the opinion that the additional conditions be imposed, the new information being that the HCCC declined to further prosecute the matter. Dr Cooke's application via his MII (medical indemnity insurer) does not offer any convincing reasons why the additional conditions should not be imposed, but for the advice that such conditions are a serious matter, as is the use of prescribing that Dr Cooke practised. 1. On 5 August 2019 the Council's senior program officer wrote to the practitioner noting the Council delegates had considered his submissions and decided to impose the additional conditions "as being necessary and appropriate for the protection of the health and safety of the public, in the light of new information, that is the Health Care Complaints Commission finalising its investigation and referring the matter to the Council for management". 2. On 13 August 2019 the practitioner attended the offices of the PRU in compliance with the condition he consent to an order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) prohibiting supply or prescribing of Schedule 8 and Schedule 4D drugs. 3. An impaired registrant's panel hearing is scheduled to be heard on 11 October 2019. The applicant's submissions 1. The applicant's submissions set out some of matters I have referred to in the chronology set out above. 2. The applicant's written submissions state that a stay is reasonably necessary to secure the effectiveness of the appeal. The submissions note that in the event the stay is not granted, the applicant will not be able to prescribe either Schedule 8 or Schedule 4D drugs. It is asserted that, as a sole practitioner, this "has the potential to significantly affect" the practitioner's practice. 3. In addressing the strength of the practitioner's case the two grounds I have set out earlier are referred to. The written submissions were prepared prior to the receipt of the Council's material filed on 11 September 2019. Having had the opportunity to read that material, the practitioner's counsel referred to the paucity of the reasons given for imposing the additional conditions and the fact that the brief reasons do not refer to events which have transpired since the original s 150 decision. It is submitted that the practitioner's case is "relatively strong". 4. It is further submitted that, while s 150C permits the Council to review conditions, the power cannot be exercised arbitrarily. It is not disputed that, at the time of the original s 150 proceedings, it was open to the Council to impose conditions for the protection of the public, but since that time risks associated with the practitioner's previous conduct have reduced because of the practitioner's compliance with conditions, and his undertaking of appropriate education and professional development. It is also noted that the practitioner's close association with the person for whom he inappropriately prescribed has ceased. 5. It is further submitted that there was no evidence adverse to the practitioner which has come to light since the original conditions were imposed. 6. Mr Fraser, counsel for the practitioner, orally expanded on his written submissions in light of the additional material relied on by the Council in this application. He noted that a report obtained by the Council from Professor John Saunders after the s 150C hearing, and now relied on by the Council, was not before the delegates. 7. Mr Fraser pointed out that the practitioner's solicitors had in their letter to the Council dated 25 July 2019 raised the issue of jurisdiction to impose conditions, purportedly under s 150, when the Council proposed taking action under s 150F of the National Law. 8. Mr Fraser, I would say most appropriately, conceded that the failure to grant a stay would not render the appeal under either s 159B or s 159, nugatory. The Council's submission and evidence 1. Ms Andersons for the Council relied on amended submissions filed on 11 September 2019. 2. It is submitted that the conditions are appropriate ones to protect the public. 3. It is unnecessary I repeat the majority of the information in the submissions and evidence as this is set out in the chronology above. 4. It is submitted on behalf of the Council that a stay would have no practical effect as the practitioner has already surrendered his prescribing authority to the PRU. 5. In emphasising why the new conditions should not be stayed, Ms Andersons referred to the practitioner's prescribing for a former close personal associate, and failing to properly maintain a drug register and the manner in which he destroyed Schedule 8 drugs in 2018. Thus, she submits the conditions are appropriate to protect the public 6. Ms Andersons then refers to the opinions expressed by the Council appointed psychiatrist, Professor Saunders in his report dated 12 August 2019. I pause to note that it is not in dispute that this report was not available to the delegates when they imposed the two additional conditions. Professor Saunders concluded that the practitioner has "no identifiable substance abuse disorder or any pattern of psychoactive substance use that would lead to any diagnosis or a health risk condition in DSM-5 or ICD-10 or ICD-11". Professor Saunders noted the practitioner's compliance with the conditions on his registration. Professor Saunders recommended further assessment by a developmental psychiatrist because as he noted: To me, there remains the issue of how his behaviour could be misunderstood for a drug-affected state (given I have concluded this is not the case) but also why a medical practitioner of nearly 20 years standing would have prescribed for somebody with whom he was in a personal relationship, such prescribing being aberrant and never identified as a concern in his previous medical career. 1. Although the submissions on behalf of the Council in opposing the stay rely on the fact that the matter is to be before an Impaired Registrants Panel on 11 October 2019, Ms Andersons indicated that, in light of Professor Saunders' recommendation, that panel may be adjourned to obtain a further psychiatric report. Consideration 1. I raised with the parties when, or if, the conditions imposed on 10 December 2018 after the s 150 hearing, expired. There was acceptance by Ms Andersons that those conditions ceased any operational effect under s 150H of the National Law on the HCCC referring the matter to the Council under s 39 of the Health Care Complaints Act 1993 (NSW). If that is the case, then there were no conditions capable of being altered or reviewed under s 150C(1)(b). Ms Andersons submitted that, even if the Council was in error in referring to exercising power under s 150C, there was power to impose conditions under s 150. The matter of the power to impose the conditions can be ventilated, if deemed appropriate, at the hearing of the appeal. 2. As I have already noted, Mr Fraser appropriately conceded that the practitioner's appeal will not be rendered nugatory by a refusal of the stay. That is clearly the case. 3. I turn then to consider the strengths and weaknesses of the practitioner's appeals. First, I have noted the potential jurisdictional error in reliance on s 150C however without the benefit of considered argument on that point I have not afforded it significant weight. Secondly, as the practitioner's counsel has highlighted there is a paucity in the reasoning of the delegates to explain why they determined the additional conditions were appropriate to protect the health and safety of the public, and there appears to have been no consideration of relevant matters, including the review conducted in May 2019, before reaching a determination. 4. I accept at the hearing of the appeal, which is a new hearing, the practitioner will be in a position to rely on the report of Professor Saunders, the review reasons, his continuing professional development and compliance with conditions. I find the practitioner's grounds of appeal on a point of law have some substance and are not entirely hopeless. 5. I have also had regard to the objects and principles of the National Law, in particular s 3A. In so doing, I consider that the submissions about the practitioner's destruction of Schedule 8 drugs, the nature of the drugs obtained for his doctor's bag, and his failure to maintain a drug register provide at least one basis for the new conditions. 6. The strengths and weaknesses of the appeal are finely balanced and I find cannot be determinative of this application. 7. I turn then to consider the balance of convenience and the public interest. 8. I accept that the practitioner is engaged in sole practice, and that in these circumstances, he does not have the benefit of being able to refer a patient who needs Schedule 8 or Schedule 4D drugs to another practitioner in the same practice. However, the practitioner's own reporting to Professor Saunders is that, while he was humiliated by the conditions being imposed, that "they would not have much effect on his practice with the exception of a small number of patients with chronic pain for whom he prescribed opioids (most of his patients obtain their medication from pain specialists). In the recommendation section of his report Professor Saunders noted that, at a practical level, only two or three of the practitioner's patients would be affected and for whom he would have to seek alternative prescribing arrangements. 9. Ms Andersons stressed that the conditions on the practitioner's registration arose on three bases. His prescribing for a close associate, the manner in which he destroyed drugs obtained for his doctor's bag, and his appearance as initially reported by the pharmacist who initiated the complaint. She submitted that until the matters can be fully explored at the appeal there may be a risk to the public if the stay is granted. 10. The factors to be considered in this stay application are finely balanced. After carefully weighing all relevant factors I conclude that the appropriate course is to refuse the stay and to expedite the appeal. In reaching this conclusion the factors to which I have given the most significant weight are first, that the refusal of the stay does not render the appeal nugatory, second, although upsetting to the practitioner, his practice will not be seriously impacted by the imposition of the two conditions for the short period until the hearing of the appeal and third the risk, if any, to the public is ameliorated pending the full ventilation of the matters relevant to the appeal. The non-publication order 1. The practitioner sought a non-publication order at this application in respect of his name and the name of the patient for whom he prescribed. The Council do not oppose a non-publication order in respect of the patient. I have not mentioned the patient's name in these reasons and pending further order, by consent, I will make the order sought in respect of the patient's name. 2. The non-publication order in respect of the practitioner is sought on two bases. First, it is submitted that the practitioner will suffer reputational damage. The second basis on which the order is sought is that the publication of the practitioner's name will lead to the identification of the patient to those members of the public who know the practitioner. I accept this latter submission does have some weight. However, there is no evidence from the practitioner or any other relevant person which permits me to make a finding that the close association the patient and the practitioner is one of general knowledge such that the patient would be readily identifiable. 3. Both parties' submissions note the usual position that proceedings of the Tribunal are generally open, and that something special, exceptional or out of the ordinary must be established in order to warrant departure from that position. Those submissions accurately reflect the authorities. 4. I am conscious that a search of the public register maintained by the Australian Health Practitioner Regulation Agency (AHPRA) already records the practice conditions imposed on the practitioner's registration. 5. Again, on balance, I am not satisfied on the evidence and submissions before me on this interlocutory application that an order should be made restraining publication of the practitioner's name. Orders 1. The application for a stay is refused. 2. The application for a non-publication order in respect of Jason Brendan Cooke (the practitioner) is refused. A non-publication order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the patient named in the material relied by the Medical Council of NSW. 3. The appeal is expedited. 4. The practitioner is to give to the other party, any material on which that party relies on or before 20 September 2019. 5. Medical Council of NSW is to give to the other party the following material: a Reply on or before 27 September 2019. 6. Medical Council of NSW is to give to the other party, any material on which that party relies on or before 27 September 2019. 7. The practitioner is to give to the other party the following material on or before 04 October 2019: all material in reply (if any). 8. Both parties are to give to the Tribunal 5 copies of all their material and 4 USBs containing that material on or before 04 October 2019. 9. The appeal is listed for hearing on 12 November 2019 at 10am at John Maddison Tower, 86-90 Goulburn Street Sydney. 10. The reasons for the decision on the Stay application are reserved. ********** 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: 18 September 2019