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[2021] NSWCATOD 190
NCAT Occupational
2021-11-25
Blake AM
Original judgment source is linked above.
s of the respondent to the medical history of the patient including any update on current medications, any overall treatment plan of the patient including alternatives and potential complications, the signed consent of the patient to any procedure, details of the sterilisation of any instruments (batch numbers) used in any procedure, and if medications are prescribed, the name, dosage and administration of the medications; (iv) she is to ensure the auditor(s) provides a report to the Dental Council in the form required by the Dental Council; (v) she is to be responsible for all costs associated with this condition; (f) the respondent is to complete within 12 months of the date of this decision courses on dental hygiene and infection control, dental record keeping, and ethics, approved by the Dental Council as follows: (i) within three months of the date of this decision she is to provide evidence to the Dental Council of her enrolment in each of the abovementioned courses; (ii) within one month of completing each of the abovementioned courses, she is to provide documentary evidence to the Dental Council that she has satisfactorily completed the courses; (iii) she is to bear responsibility for any costs incurred in satisfying this condition; (g) within seven days of commencing any other employment, the respondent is to forward evidence to the Dental Council that she has provided a copy of the conditions to the principal of that place of practice; (h) the respondent is to authorise the Dental Council to exchange information with current and future persons or organisations at places where she works as a dental practitioner in Australia, regarding any issues arising in relation to compliance with these conditions; (i) whilst the respondent's principal place of practice is in New South Wales, the Dental Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW); (j) whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, ss 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Dental Board of Australia; (4) the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. Catchwords: HEALTH - professional registration and discipline - dentist - where dentist is guilty of professional misconduct - what protective orders should be made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 64 Health Practitioner Regulation National Law (NSW), Pt 7 Div 11 Subdiv 2, ss 5, 139B, 139E, 149, 149A, 149C, Sch 5D, cl 13 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Somaey [2021] NSWCATOD 91 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Dental Board of Australia, "Code of Conduct for Registered Health Practitioners" (March 2014) Dental Board of Australia, "Guidelines on Dental Records" (2010) (retired) Dental Council of New South Wales, "Compliance Policy - Supervision" (April 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Sahar Somaey (Respondent) Representation: Counsel: C Mitchell (Applicant) J R Young (Respondent)
Solicitors: Health Care Complaints Commission (Applicant) Shiba Legal (Respondent) File Number(s): 2019/00343605 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) the disclosure of the names of the patients set out in the schedule to the complaint to any person or entity is prohibited.
Introduction
Overview
The hearing on the papers
The issues
The applicable provisions of the National Law
The applicable provisions of the supervision policy
The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law
The exercise of the power of the Tribunal to award costs including the making of a fixed sum costs order under Sch 5D cl 13 of the National Law
Whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8 Division 3 Subdivision 6 of the National Law
Introduction
The evidence of the respondent
The submissions of the parties
Consideration
The costs of the proceedings
Orders
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: 25 November 2021
Health Care Complaints Commission
Somaey
(2017) 95 NSWLR 334
(2009) 74 NSWLR 523
(1974) 2 NSWLR 91