DYB v Medical Board of Australia [2019] NSWCATOD 162

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYB v Medical Board of Australia [2019] NSWCATOD 162 Hearing dates: 15 – 18 April, 18 and 26 July 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Professor P Procopis, Senior Member Dr M Diamond, Senior Member J Houen, General Member Decision: (1) The decision of the Medical Board of Australia (the Board) dated 30 October 2018 is set aside and the following decision is substituted in lieu: Dr DYB (the practitioner) is granted general registration as a medical practitioner, subject to the following conditions: (a) If she is engaged in direct or indirect clinical patient contact: (i) the practitioner is to work in a hospital approved by the Board; (ii) the practitioner is to work as a Year 2 post graduate medical officer; (iii) the practitioner's practice is, at all times, to be supervised at Level 1 supervision in accordance with the Australian Health Practitioner Regulation Agency policy; (iv) for the purposes of Order 1(a)(i), the practitioner must obtain the prior approval of the Board to her employment in a hospital nominated by her; (v) the practitioner must obtain the prior approval of the Board of any proposed supervisor/s and shall not practise until the supervisor/s has been approved; (vi) in the event the practitioner's proposed supervisor/s is/are unable to continue supervision for any reason, then the practitioner must nominate a substitute supervisor or supervisors to the Board and must not engage in direct or indirect clinical care until a substitute supervisor/s is/are approved by the Board; (vii) the practitioner shall authorise the Board to provide a copy of the reasons for decision dated 18 October 2019 to any supervisor/s or substitute supervisor/s of the practitioner; and (viii) the practitioner must authorise any supervisor/s appointed under these orders to notify the Board immediately if there are any concerns in relation to the practitioner's compliance with these conditions or if her health or clinical performance may endanger the safety of the public. (b) If she is not engaged in direct or indirect clinical care as provided in Order 1(a)(i)-(viii) of these Orders, she must only use her professional knowledge to practise in any role which does not require direct or indirect clinical patient contact (including the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons and including supervision of other practitioners engaged in direct or indirect clinical contact), in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles; (c) Prior to engaging in any position as provided in Order 1(b), the practitioner must first obtain approval from the Board. (2) The practitioner must undertake treatment with a general practitioner and a psychiatrist (the treating practitioners) and attend at a frequency determined by the treating practitioners. (3) Within one month of the date of these Orders, the practitioner must provide the Board with the name and contact details of the treating practitioners. The treating practitioners must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the practitioner. (4) Within one month of the date of these Orders, the practitioner must provide evidence to the Board of written confirmation from the treating practitioners that they have: (a) sighted a copy of these orders; (b) agreed to notify the Board of any material change in health status which may affect the practitioner's fitness to practise; and (c) agreed to provide the Board a report prior to the review date as set out in Order 6 of these orders. (5) In the event the practitioner changes her treating general practitioner and/or psychiatrist, she must, within three days of her first consultation with her new treating practitioner, provide the Board with the name and contact details of any new treating practitioner(s) together with written confirmation from the new practitioner(s) in the same terms as set out in Order 4 of these orders. "Treating practitioners" does not include any other health professionals (including that the practitioner attends for emergency and after hours treatment). (6) The conditions imposed on the practitioner's registration shall be reviewed by the Board eighteen (18) months from the date of these Orders, or on the completion of the practitioner's Year 2 post graduate employment, whichever event first occurs. (7) Pursuant to s 64(1)(a) and (4) of the Civil and Administrative Tribunal Act 2013 (NSW) that the applicant be referred to by the pseudonym Dr DYB. (8) That no citation or hyperlink to the decision and reasons of this Tribunal be included in the entry for the practitioner in the National Register, the Medical Board of Australia's webpage, the webpage of the Australian Health Practitioner Regulation Agency or elsewhere. (9) Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication or broadcast of any reports of these proceedings in the Tribunal unless the practitioner is de-identified in accordance with Order 7. (10) Pursuant to r 42(5)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) and until further order, there shall be no third-party access to any documents held by the Registry in relation to these proceedings, including but not limited to, evidence, transcripts of proceedings, applications and written submissions that refer to the practitioner. (11) Notwithstanding Orders 7-10, there may be disclosure or publication of any of the matters referred to in those orders as follows: (a) where required or permitted by a condition imposed or order made by the Tribunal; (b) in the circumstances set out in s 216(2) of the Health Practitioner Regulation National Law (as enacted in each State and/or Territory); (c) in the circumstances set out in ss 219-221 of the Health Practitioner Regulation National Law (as enacted in each State and Territory); and/or (d) where required to be published pursuant to s 225(f) or (k) (as enacted in each State and/or Territory) (subject to the operation of s 226). (12) The practitioner is to file and serve written submissions in respect of the costs of the appeals on or before 15 November 2019. (13) The Board is to file and serve written submissions in respect of costs on or before 6 December 2019. (14) The practitioner is to file and serve written submissions in reply, if any, on or before 20 December 2019. Catchwords: PROFESSIONS AND TRADES – health practitioner – registered medical practitioner – whether practitioner should be granted unconditional registration Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth) Health Practitioner Regulation National Law (NSW) Mental Health Act 2007 (NSW) Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v CSM [2018] NSWSC 902 Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 Qantas Airways Ltd v Lustig [2015] FCA 253 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Dr DYB (Applicant) Medical Board of Australia (Respondent) Representation: Counsel: K Richardson SC (Respondent)