Health Care Complaints Commission v Nikolova-Trask [2019] NSWCATOD 192

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nikolova-Trask [2019] NSWCATOD 192 Hearing dates: 16,17,18 September 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member Dr S Cowap, Professional Member Dr K Keenan, Professional Member B Radcliffe, General Member Decision: (1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure and publication of the name of Patient A referred to in these reasons or in any document filed or tendered in the proceeding is prohibited. (2) Pursuant to s 149A(1)(a) of the National Law Dr Biljana Nikolova-Trask is cautioned in relation to her handover of patients to another medical practitioner and to ensuring she only practises medicine when she is in good health. (3) For a period of 12 months from the date hereof it is a condition of her registration as a medical practitioner that the respondent does not undertake consultation with greater than 40 patients per day and that she does not practise for more than 5 days in any one week with the exception only of consulting with patients whose health requires emergency treatment. (4) To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW and: (a) the audit is to be held within 3 months of the date of this order and subsequently as required by the Council. (b) the auditor(s) is to assess her compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to; o medical consultation notes, particularly details of physical examinations and findings, history and treatment plans o adequate recording of patient test results; o adequacy of any handover notes where care of patients is shared between multiple practitioners. (c) to authorise the auditor(s) to provide the Council with a report on their findings. (5) For a period of 18 months from the date hereof, to attend for treatment by a psychiatrist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). (d) the receipt by the psychiatrist from the respondent of the authority to communicate the above information to the Medical Council of NSW. (6) For a period of 18 months from the date hereof, to attend for treatment by a general practitioner of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). (d) the receipt by the general practitioner from the respondent of the authority to communicate the above information to the Medical Council of NSW. (7) For a period of 18 months from the date hereof, to attend for treatment by a psychologist of her choice. The practitioner must provide the Council with the professional details of the treating practitioner. The frequency of treatment is to be determined by the treating practitioner. The practitioner is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (a) failure to attend for treatment; (b) termination of treatment; or (c) a significant change in health status (including a significant temporary change). (d) the receipt by the psychologist from the respondent of the authority to communicate the above information to the Medical Council of NSW. (8) To bear the costs of compliance with these conditions. (9) The respondent is to forthwith provide to each of her medical providers engaged by her for the purpose of these orders, a copy of the judgment and protective orders made herein. (10) If the practitioner's principal place of practice is New South Wales the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). If the practitioner's principal place of practice is anywhere in Australia other than New South Wales sections 125 to 127 of the National Law shall apply and a review of the conditions can be conducted by the Medical Board of Australia. (11) 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 Legal Profession Uniform Law Application Act 2014 (NSW). (12) The respondent is to be given 28 days' notice of this decision before the decision is published and thereby available to the public. Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings – application for cancellation of registration – costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Dr Nikolova-Trask [2014] NSWCATOD 149 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Biljana Nikolova-Trask (Respondent) Representation: Counsel: P Aitken (Applicant) P Dwyer (Respondent)