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CITATION: Epstein v Chiropractic Council of New South Wales [2011] NSWCHT 3

PARTIES: Michael Epstein (Applicant) appearing by conference telephone from Bali, Indonesia.

Chiropractic Council of New South Wales (Respondent) represented by Mr I Martin, Legal Director, Health Professional Councils Authority (HPCA) instructed by Ms A McEacharn, Executive Officer, Chiropractic Council of New South Wales.

Dr Bryce Conrad (Chiropractic Member) Dr Joseph Ierano (Chiropractic Member) Ms Sandra Everett (Lay Member)

ORDERS (in summary): The Condition on the Applicant's Registration preventing the use of the title 'doctor'/prefix 'Dr' be removed. Each party to pay own costs.

CATCHWORDS: Chiropractor - condition placed upon Registration by previous Board under NSW regulatory scheme restricting use of title 'Dr' - National Registration Scheme has no such restriction - application by practitioner to have condition lifted.

LEGISLATION CITED: Health Practitioner Regulation National Law (NSW) No 86a - ss 163, 163B, 163C; Chiropractors Act 2001 - ss 3, 18, 41B, 292, 269, clauses 7 and 13 of Schedule 7; Chiropractors and Osteopaths Act 1991 - ss 3, 35, 39(1)(g), 51(1)(d).

1. The Chiropractic Tribunal (the Tribunal) convened at the Health Professional Councils Authority (HPCA) Tribunal Hearing Room in Sydney on 15 November 2011 to conduct an Inquiry with respect to an Application made in accordance with sections 163B of the Health Practitioner Regulation National Law (NSW) No 86a (National Law) by Mr Michael Epstein (Applicant).
2. The Applicant wrote to the Chiropractic Council of New South Wales (Council) on 3 June 2011 requesting that the Condition placed upon his Registration preventing him from using the prefix 'Dr' in connection with his practice as a chiropractor be lifted. This, in effect, is an application to review the Order previously made by the Chiropractors and Osteopaths Board of NSW (Board). The Order imposing the Condition on his Registration was made by a Professional Standards Committee (PSC) established under section 35 of the Chiropractors and Osteopaths Act 1991 (the 1991 Act) on 22 December 1998.

1. The Council referred the Application to the Tribunal on 28 July 2011. At the Directions Hearing held on 24 August 2011 the matter was listed for Inquiry on 15 November 2011.

1. During the Inquiry the Applicant appeared by way of teleconference from Indonesia and the Council was represented by the Legal Director. Comprehensive written submissions were provided on behalf of the Council which assisted the Tribunal and were accepted by the Applicant.

1. The relevant power is set out in section 163B(1)(d) of the National Law as follows:

(d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions.

1. The nature of the review conducted by the Tribunal and matters to be considered are set out in section 163C of the National Law which reads:

(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.

(3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint.

Findings of the Professional Standards Committee (PSC)

1. The PSC found the Applicant guilty of professional misconduct (as defined in section 3 of the 1991 Act) "in that he used the prefix "Dr", and the title "Doctor", in breach of section 5(4) of the Chiropractors and Osteopaths Act 1991."

1. The PSC exercised its protective functions under section 39(1)(c) of the 1991 Act and ordered that a condition be placed on the Applicant's registration as follows:

That Mr Epstein not use the prefix "Dr" at any time in connection with his practice as a chiropractor, or any clinic in which he is involved.

1. The PSC also fined the Applicant the sum of $1,100 in accordance with section 39(1)(g) of the 1991 Act.

1. The Council submitted that the public interest was not served by the continuation of the Order of the PSC and that the Tribunal would find that the Order was no longer appropriate. By way of background to the matter the Councils submissions included the following (at paragraphs 15 and 16 of the written submission):

1. By operation of transitional provisions in the Chiropractors Act 2001 (NSW) (the 2001 Act) and the 2010 Law Mr Epstein is a registered chiropractor under the provisions of the 2010 Law and the condition imposed on his registration under the 1991 Act is a condition on his registration under the 2010 Law.

1. The Council understands that Mr Epstein's general registration as a chiropractor lapsed in June 2011. Mr Epstein applied to be re-registered in the non-practising category of registration in September 2011 and due to an administrative oversight at Australian Health Practitioner Regulation Agency (AHPRA) the condition on his general registration was not applied to his non-practising registration. Consequently the register of practitioners kept by AHPRA does not display that condition and shows that Mr Epstein's registration is not subject to conditions. The administrative error by AHPRA does not however undermine the operation of the statutory provisions and Mr Epstein's registration as a chiropractor remains subject to the condition imposed in 1998.

1. The Council submissions summarised the relevant legislative developments that have occurred since the condition was placed on the Applicant's registration in paragraphs 17 to 20 as follows:

1. On 1 August 2002 the 2001 Act [Chiropractors Act 2001] commenced. By operation of clause 7 of Schedule 7 to the 2001 Act Mr Epstein became a registered chiropractor under that Act and by operation of clause 13 of Schedule 7 to the 2001 Act the condition imposed on Mr Epstein's registration became an order under section 51(1)(d) of that Act and continued to have effect.
2. In addition section 18 of the 2001 Act expressly provided that a registered chiropractor may not use the title "Doctor" in the course of practising chiropractic. The section provided:

(1) A registered chiropractor must not use the title "doctor" in the course of the practice of chiropractic unless the chiropractor is the holder of a qualification conferred by a university that entitles the chiropractor to use that title and that qualification is a recognised qualification at the time the chiropractor uses the title.

(a) a qualification that is prescribed by the regulations as a recognised qualification, or

(b) when no qualification is prescribed under paragraph (a), a qualification that is for the time being recognised by the Board for the purposes of this section.

At no time was any qualification held by Mr Epstein a qualification that could be recognised for the purposes of section 18 of the 2001 Act.

1. On 1 July 2010 the 2010 Law came into operation and the 2001 Act was repealed. By operation of section 269 of the 2010 Law Mr Epstein became registered as a chiropractor under that Law. By operation of section 292 of the 2010 Law the order on Mr Epstein's registration became an order under that Law and continued to have effect.
2. The 2010 Law does not prevent chiropractors (or in fact any other practitioner) from adopting the title "Doctor" or variants on it. In fact each of the chiropractor members of the Chiropractic Board of Australia, established under section 31 of the 2010 Law, and each of the practitioner members of the Chiropractic Council of New South Wales, established under section 41B of the 2010 Law, lawfully uses the honorific title "Doctor".

1. The Council provided details of other complaints that had been received by the Board. The complaints were of a minor nature and no further action was taken by the Board at the relevant time.

1. The Tribunal questioned the Applicant about these complaints and was satisfied that they were not serious matters nor were they relevant to the issue before the Tribunal.

The Tribunal accepts the submission made by the Council, and endorsed by the Applicant, that there is no longer any purpose served by the condition restricting the Applicant from using the title 'doctor' or the prefix 'Dr'.

1. The condition currently on the Registration of the Applicant:

'That you not use the prefix "Dr" at any time in connection with your practice as a chiropractor, or any clinic in which you are involved'

A copy of this Reasons for Decision is to be forwarded to:

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