© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2023] NSWCATOD 34
NCAT Occupational
2022-12-08
Original judgment source is linked above.
c. To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision that imposed this condition and any other decision or report as determined by the Council. d. Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. a. The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may: - inspect medical records; b. To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. c. To meet all costs associated with the audit(s)/inspection(s) and any subsequent reports. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions (not for the public) 8. To attend for treatment by a psychiatrist of his choice and if recommended by his psychiatrist, to attend upon a psychologist. The frequency of treatment is to be determined by the treating psychiatrist. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. failure to attend for treatment; ii. termination of treatment; iii. a significant change in the health status or a significant failure to accept or implement the advice provided (including a significant temporary change); b. must provide the Council with the professional details of the treating practitioner; c. must provide evidence (in the form of a letter from his psychiatrist) to the Council of his attendance with the treating psychiatrist. Review provisions 9. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 10. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (3) The Respondent is to pay the costs of the HCCC as agreed or as assessed. Catchwords: HEALTH - professional registration and discipline - disciplinary proceedings- stage 2 determination - protective orders following stage 1 decision of unsatisfactory professional conduct and professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 3B, 139B(1)(a), 139E, 149C(1) Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Hampshire v Health Care Complaints Commission (NSW) [2021] NSWCA 283 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Bours (No 2) [2015] NSWCATOD 80 Health Care Complaints Commission v Burton [2017] NSWCATOD 57 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Gillett [2007] NSWNMT 7 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Litchfield [2022] NSWCATOD 97 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Robinson [2021] NSWCATOD 142 Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 Lee v Health Care Complaints Commission [2012] NSWCA 80 Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702; [2009] VSCA 109 NSW Bar Association v Meakes [2006] NSWCA 340 Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) David Isaac Matzner Robinson (Respondent) Representation: Counsel: P Lowson (Applicant) R Mathur SC (Respondent)
Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/00112474 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting publication of the name of any person identified as a patient, or former patient, of the Respondent, or any information which may tend to identify any such person, including the name of any psychologist treating such patient.
REASONS FOR DECISION
The evidence tendered by the HCCC in this hearing
The evidence tendered by the Respondent
The written submission of the HCCC
The written submission of the Respondent
Determination
The nature of the professional misconduct 1. There must be a recognition in this case, that the general public, as potential patients of the Respondent, would not anticipate that if they were referred to the Respondent for a medical need related to their eyes, they would experience a physical examination of another part of their body below the clavicle. The fact that Patient A, a young woman, was subjected to a breast examination, must reasonably be expected to raise concerns in the general public about the provision of specialist medical services by the Respondent. 2. The fact that the Respondent undertook an examination which was not appropriate and was, according to Dr Campbell, not medically indicated in a patient of Patient A's age and presentation, has the potential to bring the reputation of the professional as a whole into disrepute. 3. There was a serious failure on the part of the Respondent to obtain informed consent from Patient A. We consider it highly likely that had Patient A been fully informed about her options, including the opportunity to return to see her GP for any examination below the clavicle, she would have taken that option rather than have the Respondent carry out the examination he did. The seriousness of failure to obtain informed consent is, we consider, a major fault in the practice of the Respondent in that circumstance and demonstrates a failure to appreciate the rights of the patient and the power imbalance which is at play in a doctor/patient relationship. It is reasonable to conclude that this failure may not have been confined to this one incidence of disrespect for a patients' rights, although there is no evidence of a complaint in relation to the same having been made. 4. We do not repeat verbatim the findings which we made constituting the professional misconduct, however, in nearly every aspect of the consultation between the Respondent and Patient A, there has been a finding of conduct outside of the standard expected of the Respondent given his training and seniority of practice. We are particularly conscious of the failure to provide a chaperone. We are conscious of the inadequacy of the letter reporting to Patient A's GP. We are conscious of the inadequacy in the medical records. 5. A finding of professional misconduct speaks of the seriousness of the misconduct and is based upon a finding that a protective order requiring cancellation or suspension of registration may be required. 6. The misconduct should be seen as at the more serious end of the spectrum of professional misconduct because the Respondent had been the subject of a complaint (not investigated because it was anonymous), by the partner of a female, who had been subjected to the same type of breast examination, by the Respondent, in 2001. 7. The case put by the Respondent, that this misconduct arose because of a lapse in judgment and understanding of what is expected of him as a specialist medical practitioner, raises a concern as to whether the misconduct, which has been revealed, represents the only deficiency in the Respondent's medical knowledge and adherence to the conduct of ophthalmologists with his level of training and experience. 8. The misconduct is at such a level that the HCCC seeks cancellation and a period of twelve months to be imposed before the Respondent can once again apply to the Tribunal to be re-instated.
Is it possible to frame conditions which, if imposed, will ensure the Respondent will practise safely and that the public will thereby be protected?
If we are minded to impose conditions, what would those conditions be or guard against?
Is it necessary to cancel the Respondent's registration to protect the public, provide a deterrent to other practitioners and retain the public confidence in the medical profession? Will an order such as suspension of registration or a reprimand be sufficient in the particular circumstances of this case?
Costs
Orders The orders of the Tribunal are as follows: 1. The Respondent's registration as a medical practitioner (General and Specialist - Ophthalmology) is suspended for three calendar months from the date of this order. 2. The Respondent's registration is to be subject to the following conditions. Practice conditions 1. To obtain Medical Council of NSW (Medical Council) approval prior to changing the nature or place of his practice. 2. To complete, within 12 months of the date of the Tribunal's decision, the Ethics Counsel Program for Health Professionals organised by the Ethics Centre. a. Within 3 months of the date of the Tribunal's decision, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b. Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. c. To bear responsibility for any costs incurred in meeting this condition. d. In the event that the Ethics Counsel Program for Health Professionals is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making this proposal, by no later than 3 months from the date of the Tribunal's decision. 3. To attend at least two medical conferences of not less than one day's duration, where there are other medical practitioners present and medical practitioners presenting papers, in person (educational lectures). Such conferences to be approved by the Medical Council. Evidence of attendance to be provided to the Medical Council within 14 days of attendance having taken place. 4. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. The approved supervisor or supervisors are to be practitioners who do not practice in the immediate vicinity of the Respondent's practice in the Eastern suburbs of Sydney and are not to be personal friends of the Respondent, his immediate family, or his father. b. At each supervision meeting, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:
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: 23 March 2023
Health Care Complaints Commission
Robinson
[2009] VSCA 109
[2013] VCAT 738
(2017) 95 NSWLR 334
(1960) 104 CLR 186
(1997) 41 NSWLR 630
(2009) 23 VR 702
(2009) 74 NSWLR 523