Health Care Complaints Commission v Abdalla [2020] NSWCATOD 20

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Abdalla [2020] NSWCATOD 20 Hearing dates: 3, 4 February 2020 and written submissions dated 6 February 2020 and 18 February 2020 Date of orders: 09 March 2020 Decision date: 09 March 2020 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr J Fogarty, Senior Member Dr L Cotterell, Senior Member M Kelly, General Member Decision: 1. The practitioner is reprimanded. 2. The practitioner's registration is suspended for a period of six months. 3. Order 2 of these orders is stayed for 21 days from the publication of these reasons and orders. 4. On the expiration of the practitioner's suspension the following conditions are imposed on the practitioner's registration: (a) to advise the Medical Council of NSW ("the Council") in writing not less than seven days prior to changing the nature or place of his practice; (b) not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined in the Poisons and Therapeutic Goods Act 1966 (NSW) and any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2009 (NSW); (c) not to make any application to review his prescribing restrictions with the NSW Health Pharmaceutical Regulatory Unit without the approval of the Medical Council of NSW; (d) to practise under Category B supervision in accordance with the Council's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate review body: (i) at each meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements, as well as record keeping; (ii) to authorise the Council to provide proposed and approved supervisor/s with a copy of these reasons for decision. (e) to treat or see in consultation no more than 30 patients in any one day except in the case of emergency; (f) to submit to a Practice based Performance Assessment of his medical practice by a person or persons nominated by the Council. The Performance Assessment is to be held within six months from the date of expiration of the suspension imposed by Order 2 of these orders; (g) to meet all costs associated with the Performance Assessment and any subsequent reports; (h) to authorise and consent to any exchange of information between the Council, Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions; (i) within seven days of commencing any other employment he is to forward evidence to the Council that he has provided a copy of these conditions to the principal of that place of practice; and (j) to authorise the Council to exchange information with any future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 5. While the practitioner's principal place of practice is New South Wales, the Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). 6. If the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, s 125 to 127 of the National Law are to apply, and a review of these conditions can be conducted by the Medical Board of Australia. 7. The Registrar is requested to advise the Medical Council of NSW as soon as practicable of Orders 1, 2 and 3 of these orders. 8. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) save and except any costs associated with Complaint Three of the complaint dated 11 July 2019. Catchwords: PROFESSIONS AND TRADES – health care professional – medical practitioner – where practitioner admits inappropriate prescribing and also admits failing to maintain proper medical records – where practitioner admits his conduct constitutes professional misconduct – costs - where complaint the practitioner is guilty of improper or unethical conduct by failing to disclose financial interest in pharmacy to his patients is withdrawn shortly prior to the hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Suri [2016] NSWCATOD 54 Medical Council of NSW v Lee [2017] NSWCA 282) Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 Quach v Health Care Complaints Commission [2015] NSWCA 282 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 Spicer v NSW Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep) Stena Rederi Aktiebolag v Austal Shipping Sales Pty Ltd [2007] FCA 1141 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Hany Abdalla (Respondent) Representation: Counsel: Ms D New (Applicant) Mr P Aitken (Respondent)