Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bodnar v Health Care Complaints Commission [2019] NSWCATOD 188 Hearing dates: 21 March 2019, 27 May 2019 Date of orders: 13 December 2019 Decision date: 13 December 2019 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: (1) The decision under review is affirmed. (2) The applicant is to pay the costs of the respondent for the hearing on 21 March 2019 in the amount of $2,705.50, such costs to be paid personally by the applicant's legal representative. Catchwords: PROFESSIONS AND TRADES – health practitioner – naturopath and other therapies – criminal conviction – cause danger of death to child – review of permanent prohibition order – whether order should be modified to permit applicant to deliver certain therapies to persons over 16 COSTS – whether conduct of proceedings caused disadvantage – costs against legal representative personally Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Public Health Regulation 2012 (NSW) Cases Cited: R v Bodnar [2018] NSWDC 76 Category: Principal judgment Parties: Marilyn Bodnar (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: M Licha (Applicant) P Lowson (Respondent) Solicitors: Mitry Lawyers (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2018/00260934 Publication restriction: An order is made under section 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure or publication of:(1) The name of the child who was the subject of District Court proceedings R v Bodnar [2018] NSWDC 76;(2) any evidence which would identify or tend to identify that child or the child's parents; and(3) the name of the complainant in Exhibit R3 filed in these proceedings and of a former client of the applicant referred to in the first paragraph on page 2 of Exhibit R3 under the heading "My complaint is:". REASONS FOR DECISION 1. The applicant, Ms Marilyn Bodnar, was arrested and charged by NSW Police on 9 July 2015 with offences relating to treatment advice she had given in her capacity as a naturopath to a female client (subsequently referred to as Person A). It was alleged that the advice she had given to Person A caused serious injury to and resulted in a risk to the life of Person A's infant son. Person A was also charged by NSW Police. Initially, Ms Bodnar pleaded not guilty to the charges and was released on bail. When the matter came before the District Court on 25 August 2017, Ms Bodnar entered a plea of guilty to the offence of "failed to provide for child cause danger of death; Aid, abet, counsel or procure, an offence under section 43A(2) of the Crimes Act 1900". Ms Bodnar was later convicted and sentenced to a term of imprisonment of 14 months with a non-parole period of seven months. 2. On 23 July 2018 the respondent, the Health Care Complaints Commission (the Commission), following an investigation, made a prohibition order against Ms Bodnar. The prohibition order followed on from a number of interim prohibition orders which had been made between 7 August 2015 and 2 March 2018. The final order is in the following terms: Ms Bodnar is permanently prohibited from providing any health service in any capacity, either paid or voluntary. For the purpose of this order, 'health service' is given the meaning as defined under section 4 of the Health Care Complaints Act 1993. 1. Ms Bodnar has sought review of that decision. Background 1. Ms Bodnar was a registered nurse from about 1977 to 2007. She then operated a home birth business for about eight years as a registered midwife. At the time of the offence in 2015 Ms Bodnar operated a naturopath business, "Health and Vitality Centre" which claimed to specialise in parents, children's health and infertility. She also ran various wellness workshops and information sessions from her home and, with her husband, operated a business called "Sweet Succulent" which sold organic products. 2. The following information is taken from the agreed facts dated 29 March 2018 signed by Ms Bodnar and filed in the District Court: 1. The victim was born on 3 October 2014. At his 8 week check-up he was diagnosed with cradle cap, and at his 4 month immunisation in February (where he was found to still be developing normally) the GP diagnosed him with eczema, prescribed steroid creams and referred him to a specialist. 2. On 23 February 2015, a medical specialist diagnosed the victim with severe atopic dermatitis, booked him in for a skin prick test and advised [Person A] to remove eggs and dairy from her diet until the test was done. At this visit the specialist informed [Person A] that the eczema could not be cured and could only be treated. He then booked them in for a follow-up appointment to discuss the results of the prick test on 4 May 2015. That appointment was later cancelled by [Person A]. 3. Sometime around the above diagnosis [Person A] was introduced to Ms Bodnar, who told her that she could cure the victim's eczema. Ms Bodnar told [Person A] that the victim's eczema could have been caused by [Person A's] diet and the toxins in her body. 4. Phone records show that as early as 25 February 2015 Ms Bodnar advised [Person A] to go on a "raw only" diet. From around 10 April 2015 [Person A] began to follow Ms Bodnar's advice, ceased conventional medical treatment for the victim's eczema and commenced to attempt to treat the victim's condition by taking up a raw food diet. This treatment contributed to the serious harm later suffered by the victim. 5. As a result of the restricted diet, [Person A] and the victim lost weight. [Person A] lost 11 kg and the victim lost 1.6 kg. Ms Bodnar was also aware of this weight loss but assured [Person A] that this was normal, that the victim was fat and needed to lose weight. Ms Bodnar told [Person A] that this was an elimination process where the victim was getting rid of the toxins in his body. 6. Things got progressively worse in early to mid-May when the victim began having high temperatures. At this stage Ms Bodnar advised [Person A] to fast and go on a water only diet. [Person A] did not fast, but ate only watermelon for 3 days whilst feeding the victim exclusively on her breastmilk. 7. The situation reached a critical stage on or around 21 May 2015 when the victim was unsettled and [Person A] was concerned he needed more food. Ms Bodnar suggested that she could give the victim goat's milk. 8. However, when [Person A] tried to give the victim the goat's milk he vomited. Ms Bodnar then suggested [Person A] try to dilute the goat's milk with water and try again, but the victim vomited that also. On admission to hospital on 28 May, [Person A] told staff that since trying the goat's milk on 21 May, the victim had vomited numerous times a day. 9. On 28 May 2015 [Person A] took the victim to a GP and was advised to take him to Westmead Children's Hospital. He was found to be in a critical condition. Doctors indicated that had he not presented to hospital he could have died within a number of days. The following medical observations were made: * The victim was emaciated and pale. The top of the victim's head (fontanel) and eyes were sunken; * The victim was 10% dehydrated; * His hands and feet were flexed (and unable to be extended), his legs were able to be extended with difficulty; * He had critically low levels of sodium – hyponatremia (drops in sodium levels can lead to neurological findings and in severe cases morbidity and mortality. It is critical to slowly correct the imbalance due to the high incidence of brain damage due to osmotic demyelination); * There was demonstrated failure to thrive. He was 8 kg age 6 months and 6.4 kg on admission age 7 ½ months; * Atopic eczema. The victim was irritable and continually scratching his skin. He had red eczema all over his face, head and body. This was infected; * Evidence of developmental delay. A significant regression was demonstrated from 6 months of age witch correlates with [Person A] following Ms Bodnar's advice. On presentation he was weak with poor movements and could not sit independently. His development at 8 months was assessed as equivalent to a 3 month old. 1. The victim remained in hospital from admission on 28 May 2015 until early July. After treatment the experts indicated that the hyponatremia and dehydration were slowly corrected. He gained weight and was 7.57 kg on discharge. 2. The victim will need to be assessed by medical experts over the next few years in order to ascertain whether or not he will suffer any long-term developmental delays as a result of the conduct described above. The legislative scheme and decision under review 1. Section 4 of the Health Care Complaints Act 1993 (the Act) defines a "health practitioner" to mean a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law). Among other things, a health service is defined to include massage therapy, naturopathy, and other alternative healthcare fields. Ms Bodnar was not required to be registered. 2. Under the Act, the Commission is responsible for investigating and assessing complaints about health practitioners. On 17 July 2015 the Commission utilised its own motion powers under section 8(2) of the act to initiate a complaint and investigate the conduct of Ms Bodnar, on the basis that it appeared that her conduct raised a significant issue of public health or safety. After the criminal prosecution of Ms Bodnar was finalised in April 2018, the Commission completed its investigation into: 1. whether Ms Bodnar had breached the Code of Conduct in relation to her care and treatment of the infant and his mother; and 2. whether her conduct poses a risk to the health and safety of members of the public. 1. Schedule 3 to the Public Health Regulation 2012 contains the Code of Conduct that applies to non-registered health practitioners. 2. The Commission found that Ms Bodnar had breached several clauses of the Code of Conduct and that her conduct poses a risk to the health or safety of members of the public. It was found that, contrary to the Code of Conduct, she: * provided a health service in an unsafe and unethical manner in that she provided treatment advice with no clinical basis and which caused significant harm to the health of the victim, causing the near death of the victim and significant developmental delays; * she failed to recognise the limitations of her proposed treatment and failed to refer the victim to other competent health practitioners; * she failed to recommend that additional options and services be sought; * she failed to assist [Person A] to find other appropriate healthcare professionals for the victim when it was required; she diagnosed and treated an illness or condition without an adequate clinical basis; and she made claims about the efficacy of the recommended treatment when those claims could not be substantiated. 1. The Commission then took action under section 41A(2)(a) of the Act to permanently prohibit Ms Bodnar from providing any health service in any capacity, either paid or voluntary. 2. Ms Bodnar does not dispute that a prohibition order can or should be made in the circumstances. She wishes, however, to vary the order. The issue that therefore arises for determination is whether Ms Bodnar should be permanently prohibited from providing any health service or whether she may be permitted to provide certain health services in certain circumstances. Ms Bodnar refers to the bail conditions which were applicable while she was awaiting trial. Under those conditions, she was prohibited from treating any child under the age of 16 in the capacity of a practitioner of a range of specified natural therapies. She was also prohibited from advising any parents who have children under the age of 16 for any of those treatments. She submits similar conditions should form part of any prohibition order. 3. Ms Bodnar proposes that she be prohibited from providing any health services (as defined in section 4 of the Act) to any person, other than massage therapy, Bowen therapy, craniosacral therapy, Emmett therapy and aromatherapy. She also proposes that, in relation to the therapies just mentioned, she be prohibited from providing those services to any person under the age of 16 or to any person for the benefit of a person under the age of 16 including with that person's consent. The Commission opposes the making of such an order and submits that a permanent prohibition order in the terms set out above is appropriate. 4. In accordance with section 41C of the Act, Ms Bodnar has applied to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination. The evidence before the Tribunal 1. The evidence before me comprises primarily evidence taken from the NSW Police brief of evidence against Ms Bodnar and other documents including the record of conviction and the District Court's decision on sentencing. I also have before me submissions Ms Bodnar made to the Commission, various references and a letter she provided to the Tribunal in these proceedings along with a letter from a prospective employer. Ms Bodnar also gave evidence at the Tribunal hearing. 2. Ms Bodnar states that she is happy to restrict her work in accordance with the bail conditions that applied from the time she was charged on 9 July 2015. She states that there were no complaints made against her during the three years she worked in accordance with the bail conditions. She states she is content not to give any nutritional advice to anybody who receives any of the body therapies she wishes to continue practising. Ms Bodnar states that she understands the allegations against her and the crime with which she was charged. In his sentencing remarks Berman SC DCJ noted that Ms Bodnar had provided a letter of apology to the Court and expressed her remorse. He accepted that Ms Bodnar did not intentionally intend to harm the child or Person A (R v Bodnar [2018] NSWDC 76). 3. At the hearing Ms Bodnar said that she was trying to improve the nutritional value of Person A's breastmilk and guided her to eat healthier food, particularly raw fruits and vegetables, nuts and legumes. Ms Bodnar was questioned at length about the content of text messages between herself and Person A and between herself and Person A's sister. It is apparent from the text messages Person A was referred to Ms Bodnar by her sister who was a client of Ms Bodnar's. 4. Person A's sister informed Ms Bodnar that Person A's 3 month old son had been prescribed topical steroids for his eczema. On about 21 February 2015 Person A saw Ms Bodnar for a "consultation" and Bowen therapy session. Ms Bodnar said that the purpose of the consultation was to take a full medical and lifestyle history with the aim of teaching Person A how to eat whole foods and fresh fruit and vegetables and to make use of sunshine for the body. Ms Bodnar referred to "detoxification" of the body. She said that she recommends a particular course to a person but is up to that person to decide what to do. 5. Shortly after Person A had seen Ms Bodnar, Ms Bodnar sent a text message to Person A's sister which stated that Person A had already sensed that her son's rash had appeared after his vaccinations at two months and four months. Ms Bodnar stated, "I pray she has her husband on board now to no longer vaccinate". At the hearing Ms Bodnar insisted that she had not told Person A not to have her child vaccinated. She said, however, that she does not agree with the vaccination of children and that Person A had made the connection between vaccination and her son's skin condition. Despite Person A's sister having previously told Ms Bodnar that Person A's son had eczema, Ms Bodnar said at the hearing that at that stage she did not know that the child had eczema and that at that stage his skin condition had not been confirmed as eczema. 6. Following questioning at the hearing Ms Bodnar accepted that she knew Person A was exclusively breastfeeding her son and knew that what Person A consumed would affect the baby. She also accepted that she needed to be aware if the baby had a medical condition in order to give advice to Person A. She acknowledged that the baby had a skin condition but said she did not know whether it was eczema. In her conversations with Person A she implied that when toxins left his system his body would relax. In a text message on 25 February 2015 Ms Bodnar said to Person A that she needed to be on a raw food only diet to alkalise her milk in order to help her son heal faster. When it was put to Ms Bodnar at the hearing that she was attempting to influence Person A in relation to her food choices, she said she was not. She said she did not know what Person A ate or if she followed her advice. She was aware that Person A wanted to fully breastfeed her son. 7. The text messages show that on 15 March 2015 Person A informed Ms Bodnar that her son was using steroid cream. At the hearing she denied having any discussions with Person A after that date about stopping use of the steroid cream. However, by 14 April 2015 Person A was inquiring of Ms Bodnar whether she could use aloe vera cream on her son's skin as it was very dry and cracking in some areas causing it to bleed. Text messages in mid-May indicate that Person A was tracking her and her son's temperature. At the hearing Ms Bodnar said that she had asked Person A to record temperatures from the beginning. She said that if the baby's temperature was rising, his mother would stay on water or watermelon for 24 hours. She said there was no problem with Person A being on a watermelon diet for one or two days. Ms Bodnar said that, if Person A was only eating fruit and vegetables, there still would have been enough nutrition in her breastmilk. 8. On 20 May 2015 Person A's sister contacted Ms Bodnar and stated that she was really concerned for Person A and especially her son as he was unsettled for most of the day and night and had lost a lot of weight. She stated that she had wanted to start him on fruit purée or vegetable juice but Person A was refusing to give him anything. Person A's sister asked Ms Bodnar "How long does he have to be fasting for?". Ms Bodnar stated at the hearing that Person A's son was not fasting. She said she was not sure if she saw him around that time. She said that her role was to build up Person A's breastmilk but agreed that she was also advising Person A about her care of her son. 9. On 26 May 2015 Person A informed Ms Bodnar in a text message that her son was "still vomiting". Ms Bodnar responded by asking "So did he stop vomiting when u kept him on water?". Person A replied that she did not put him on water only because her family didn't agree with it. When questioned at the hearing about whether she was aware prior to this day that Person A's son had been vomiting, she said she couldn't remember. She insisted that her suggestion of putting him on water was only for that day. In the text message exchange Ms Bodnar informed Person A that she needed to stay on water when her son had a fever as she was breastfeeding him. Person A responded that she couldn't stay on water only all day because her family was not happy about it and wanted her to take her son to hospital. Ms Bodnar responded "Oh no just when he has raised vitality again to throw off more toxic matter. Then stay on raw preferably watermelon only". At the hearing Ms Bodnar denied that her statement meant don't take him to hospital just when the raw food diet is working. Person A took her son to hospital on 28 May 2015. 10. In an interview with NSW Police, Person A said that when her son lost weight Ms Bodnar reassured her that all was normal. Person A said she started getting very concerned about her son's development but Ms Bodnar reassured her and told her that what she was doing was the right thing and it was the best cure that she could provide for her son. When this statement was read out to Ms Bodnar at the hearing, she said that she would not have used the word "cure". She did agree, however that in the statement of agreed facts on sentence, it was stated that she had told Person A that she could cure her son's eczema. She also said that Person A did not raise any concerns about her son's weight loss with her. She said that a raised temperature in a child was a natural body reaction and could be the result of teething or other minor ailments. 11. In the same interview Person A said she thought her son should be eating solids and she had prepared vegetable purées for him but Ms Bodnar told her that you don't give vegetables to babies until they get their teeth. At the hearing Ms Bodnar said that puréed fruit and vegetable that can be eaten raw was suitable for babies. 12. In the text messages between herself and Person A, Ms Bodnar referred to her nursing experience. Person A also told staff at the hospital that Ms Bodnar was a registered nurse. At the hearing Ms Bodnar denied that she emphasised that she was a nurse so that people were more likely to believe her advice. 13. At the hearing Ms Bodnar was asked about the results of hospital investigations of Person A's son after he was admitted. She did not agree with the report which stated there were concerns that the baby would be developmentally delayed as a result of the deterioration in his condition while his mother followed Ms Bodnar's instructions. In relation to the finding that his sodium levels were critically low, Ms Bodnar stated that they would have been low because he had been vomiting. 14. At the hearing Ms Bodnar was referred to the medical observations, which are set out above in the statement of agreed facts, in relation to Person A's son on admission to hospital. When asked whether she accepted that the advice she had given to Person A led to this condition, she responded that she did not. She stated that she was not aware of how sick the child was and did not give Person A advice that would result in the child's condition. She said she was unaware of how badly he had been vomiting. She did not agree that the child's muscle wastage was the result of a prolonged lack of protein. She said she was not made aware of any risk to the baby until she was told that Person A was taking him to hospital. She acknowledged that she had seen the baby on 20 May 2015 but said he was not in a grave state. When asked if she believed that loss of weight was a matter to be concerned about, she responded that on 20 May the child had only lost "chubby fat". She said that she had not seen the baby in the state depicted in photographs taken upon his admission to hospital. 15. The Commission referred to a previous charge of manslaughter against Ms Bodnar in 1987 in relation to the death of a female who was staying with Ms Bodnar while undertaking a fast. It appears that the woman died at Ms Bodnar's home after 63 days of fasting and prior to a doctor attending the house. According to the Commission Ms Bodnar only contacted a doctor after the woman had lapsed into unconsciousness and did not contact an ambulance. Ms Bodnar was acquitted as it could not be established that she was in the nursing relationship with the woman. At the hearing Ms Bodnar stated that the woman was a client of a friend, Sister Joyce Lubke, and had nowhere else to go. She said she was not giving the woman any advice and Sister Lubke was in charge and visited during that time. She said that she saw the woman every day and was aware that she was losing weight although said the woman continued to be able to walk. She said that at the time she did not question Sister Lubke's methods but now accepts she should have questioned them. She acknowledged that in 2015 she had given Person A a book written by Sister Lubke. 16. The Commission provided a copy of a complaint which had been made to it in April 2018 in which it was alleged that while on bail Ms Bodnar continued to conduct workshops about nutrition and fasting at the Health and Vitality Centre. The complainant provided extracts from the Facebook page for the Health and Vitality Centre which gave details of the workshops including that the cost was $40 per adult and $15 for children under 12. At the hearing Ms Bodnar stated that no children in fact attended and that anyone who booked to attend the workshops did not have any children under 16. She said she would inform people that children and parents of young children could not attend when they made inquiries about the workshops. She said the information about the cost to children had simply remained on the brochure as it had been there in the past and she had not removed it. Ms Bodnar also stated that a guest speaker would conduct workshops and she did not conduct them herself. She said no further workshops have been conducted since sometime in 2017. She states she was not in breach of her bail conditions. 17. At the hearing Ms Bodnar said that she firmly believes in the benefits of a wholefood plant-based diet. She said that, if she is allowed to practise body therapies such as massage, she is determined to not introduce her beliefs to her clients as she does not wish to go through again what she has already been through. She has had an offer from a previous employer to work as a massage therapist. Ms Bodnar also provided in her submission to the Commission several references from previous employers and clients attesting to her skills and abilities as a therapist. Ms Bodnar said that she is struggling financially as she has been unable to work since the prohibition order was made. She states that because of her age it is virtually impossible to obtain alternative employment. Consideration 1. Ms Bodnar submits that the prohibition order should be varied as set out above. She points to comments that were made by Berman SC DCJ during sentencing that there was little evidence to suggest that she would commit a similar offence in the future. She states that she complied with her bail undertakings and with the interim prohibition orders which indicates that she would not, in the future, breach any terms of a modified prohibition order. Ms Bodnar further states that there is no evidence that she would not refrain from providing health advice if she were permitted to engage in massage and other related therapies. She submits that the permanent prohibition order is punitive by nature rather than protective. 2. During the hearing, Ms Bodnar showed very little insight into her behaviour and her role in the situation Person A and her son eventually found themselves in. She still maintains that the diet she was encouraging Person A to follow was suitable for a breastfeeding mother, including periods of fasting. She refuses to accept that the dire medical condition of Person A's son on admission to hospital was a result of the advice she gave to his mother. Ms Bodnar was deliberately evasive in her answers to a number of questions asked of her at the hearing. She sought to minimise her involvement and maintained that she was not aware of the deterioration in Person A's son's health. 3. In his sentencing remarks Berman SC DCJ stated: In this case the advice given by the offender Marilyn Bodnar to the mother of a child with eczema almost led to that child's death. The advice should probably never been given in the first place but the fact that Ms Bodnar continued to give that advice in the face of evidence of the harm that was being caused, and in the absence of Ms Bodnar monitoring the condition of the child, meant that it was seriously criminal behaviour to continue giving such flawed advice. 1. These remarks are as true today as they were at the time of sentencing. Indeed, Ms Bodnar sought to imply at the hearing that she had no responsibility for monitoring the welfare of Person A's son. She claimed that she had not seen the child or was not aware of his circumstances. She also claimed that she did not know the child had eczema. That statement cannot be believed. The fact of the child's eczema was the reason for the referral by Person A's sister to Ms Bodnar. It is clear from the text messages that she was engaged in treating that condition although she had no medical expertise to do so. She suggested various remedies, including the application of coconut oil and aloe vera, none of which assisted in resolving the condition. Although she denies it, it is apparent that she was of the view her methods could cure the eczema. Her own evidence, however, appears to be that she took no positive or proactive steps to monitor how her advice given primarily over the phone or by text message was affecting the health of her clients. It is clear that she still does not accept that it was any of her responsibility to do so. 2. Ms Bodnar fails to acknowledge that in her previous role she was in a position of influence in relation to her clients, particularly Person A. I am of the view that she deliberately referred to her nursing background to increase her status in the eyes of Person A. I do not accept that Ms Bodnar's view was that she would suggest to clients the way forward and then leave it to them to choose whether they followed that path. The tenor of the text messages between her and Person A or Person A's sister are considerably more directive and were intended to strongly influence Person A's responses and behaviour. 3. Prior to the imposition of the interim prohibition orders and the bail conditions, Ms Bodnar ran what might be described as a holistic business in which she integrated her therapies with nutrition advice, the holding of workshops and the delivery of organic food. Her advice around wholefoods and raw foods is part of her core belief system. As the Commission points out, Ms Bodnar's treatment of Person A commenced with a Bowen therapy session and a consultation. Her therapies therefore formed an integral part of her overall philosophy and practice. 4. Ms Bodnar acknowledges that, in hindsight, she should have been more questioning of Sister Lubke's methods in 1987. What is concerning, however, is that she clearly continued to support Sister Lubke's views and even provided one of her books to Person A. She appears not to have learnt anything from that incident in 1987 about the consequences of severe dieting. 5. I accept that while on bail and when subject to interim protection orders Ms Bodnar complied with those conditions. There is insufficient evidence arising out of the complaint referred to by the Commission to find that Ms Bodnar may have breached her bail conditions. I cannot be satisfied, however, that over time, if she is permitted to engage in the therapies she wishes to continue to practise and to therefore enter into a therapeutic relationship with her clients, she would be able to refrain from giving other health advice. This is for two reasons. Firstly, because Ms Bodnar's practice for many years has been underpinned by her basic beliefs in nutrition and the integration of body therapies and diet. Secondly, and perhaps more importantly, because Ms Bodnar lacks the ability to have insight into or take responsibility for her previous actions. I could not be satisfied that she would able to refrain from using the trust placed in her by her body therapy clients to promulgate her beliefs. 6. I am therefore of the view that the only way to ensure the protection of the public is for Ms Bodnar to be permanently prohibited from providing any health service in any capacity. I accept that Ms Bodnar may be in a difficult financial situation because of the terms of the order, but that is not a matter which is relevant to the issues I have to decide. The decision under review is therefore affirmed. Costs 1. This matter first came before me for hearing on 21 March 2019. Directions hearings had been held on 25 September 2018 and 18 December 2018 before another member. The directions made by the member make clear that this matter was being dealt with as an application for administrative review under the ADR Act. Directions were made on both occasions for the applicant to provide all evidence, including statements and submissions by a certain date. The applicant failed to file any evidence before the hearing on 21 March 2019. 2. At the hearing Ms Bodnar's representative sought an adjournment to obtain further evidence. The Commission agreed to the adjournment but sought its costs of the day in the amount of $2,705.50. Furthermore, the Commission asked that costs be awarded against Ms Bodnar's solicitor personally. 3. Section 60 of the Civil and Administrative Tribunal Act 2013 provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. 1. The Commission submits, in relation to the hearing of 21 March 2019, it was unnecessarily disadvantaged by the way Ms Bodnar's representative conducted the proceedings. 2. It is apparent that Ms Bodnar's representative was not aware that the Tribunal's jurisdiction in relation to this matter arises under s 41C of the Act which provides a health practitioner with a right of review under the ADR Act of a decision to make a prohibition order in respect of the health practitioner. The application for review was lodged on the wrong form – the External Appeal form – and set out grounds of appeal akin to judicial review rather than administrative review. 3. At the hearing it then transpired that Ms Bodnar's representative was of the belief that the proceedings were to be conducted in the same way as many matters arising under the Health Practitioner Regulation National Law (NSW) where a two stage process is applied to, firstly, the assessment of a practitioner's conduct and, secondly, the undertaking of any disciplinary action against the practitioner. 4. The Commission submits, and I agree, that Ms Bodnar's representative was put on notice of the nature of the proceedings by the directions made for the filing of the section 58 documents and the exchange of evidence and submissions. When the section 58 documents were provided to Ms Bodnar there was a further opportunity for her representative to assess the nature of the proceedings. Furthermore, there is an obligation on the part of a legal representative to understand the nature of the jurisdiction in which an application is filed or proposed to be filed, even if the representative does not usually practise in that area. 5. The Commission had complied with the directions of the Tribunal, had filed its relevant material and was ready to proceed with the hearing on 21 March 2019. The Commission should receive its costs of the day thrown away by the adjournment. Ms Bodnar's legal representative should be personally liable for those costs rather than Ms Bodnar having to bear her representative's inattention. Orders 1. The decision under review is affirmed. 2. The applicant is to pay the costs of the respondent for the hearing on 21 March 2019 in the amount of $2,705.50, such costs to be paid personally by the applicant's legal representative. ********** 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: 13 December 2019