Health Care Complaints Commission v Toma

1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place(s) of practice.

2. To treat no more than 35 patients in any one day.

3. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW).

4. Not to possess, supply, administer or prescribe any `drug of addiction` (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).

5. To practise under category B 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 terms of the Council's Compliance Policy-Supervision are varied so that:

i. The frequency of the practitioner's meeting with his supervisor is to be weekly

ii. The practitioner authorises the supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

c. In addition to the supervision meetings the practitioner will undertake weekly observations with the Council approved supervisor for at least one hour duration. These will alternate between:

i. The supervisor observing the practitioner conduct patient consultations; and

ii. The practitioner observing the supervisor conduct patient consultations.

iii. Feedback about the observations are to be included in the supervision reports.

d. To authorise the Medical Council of NSW to provide approved supervisors with a copy of the decision which led to these conditions and/or any other relevant decision or report as determined by the Council.

6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit 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.

8. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW).

9. 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 New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

Conditions imposed by the Tribunal following Stage 2 Decision.

1. The Practitioner must 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.

2. 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.

6. The Medical Council is the appropriate review body of these conditions for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

7. 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."

(2) By consent, the 'Health Conditions', conditions 3 to 5 of the Conditions imposed by the Tribunal following Stage 2 Decision, not be published and instead be marked [not for publication].

PRACTICE AND PROCEDURE - Variation of orders by consent - Orders under the Health Practitioner Regulation National Law (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Regulation 2022 (NSW)

Hammond v Ozzy's Cheapest Cars Pty Ltd T/as Ozzy Car Sales [2015] NSWCATAP 65

Puri v Medical Council of New South Wales [2024] NSWCATOD 87

The 'Health Conditions', conditions 3 to 5 of the Conditions imposed by the Tribunal following Stage 2 Decision, not be published and instead be marked [not for publication].

1. On 7 April 2025 the Tribunal, constituted in accordance with s 165B(2) of the Health Practitioner Regulation National Law (NSW) (the National Law), made orders and published its Reasons for Decision in Health Care Complaints Commission v Toma (No 2) [2025] NSWCATOD 33.
2. The orders included a reprimand of the respondent (Order 1) and stated that his registration was subject to certain conditions (Order 2). However, Order 2 did not specify the conditions imposed on the respondent's registration.
3. On 13 May 2025, the parties approached the Tribunal with proposed consent orders. By way of the consent orders, the parties sought to vary the orders of 7 April 2025 so as to set out the conditions to which the respondent is subject in Order 2. By consent, the parties also sought a further order prohibiting the publication of certain paragraphs of those conditions.

1. The Tribunal has the power to set aside or vary orders by the consent of all of the parties to the proceedings: Civil and Administrative Tribunal Regulation 2022 (NSW) (the Regulation), cl 9(1)(a).
2. A decision to set aside or vary orders under cl 9 of the Regulation is an ancillary decision: Hammond v Ozzy's Cheapest Cars Pty Ltd T/as Ozzy Car Sales [2015] NSWCATAP 65 at [26]- [40]. For the purpose of ancillary or interlocutory decisions under the National Law, the Tribunal is to be constituted by the Tribunal List Manager or a senior judicial officer: National Law, s 165B(5A). That is here satisfied.

1. Order 2 of the orders made by the Tribunal on 7 April 2025 provides as follows:

"(2) The Respondent's registration is to remain subject to the conditions in place as at the date of the Stage 1 hearing, and to be further subject to those conditions suggested in the Addendum (tendered 9 December 2024) to the Respondent's submissions dated 4 December 2024."

1. By consent, the parties seek that Order 2 be varied to expressly set out the conditions already referred to (albeit without specifics) in Order 2. These are:

"Conditions imposed by the National Board in place as at date of Stage 1 Hearing:

1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place(s) of practice.

2. To treat no more than 35 patients in any one day.

3. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW).

4. Not to possess, supply, administer or prescribe any `drug of addiction` (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).

5. To practise under category B 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 terms of the Council's Compliance Policy-Supervision are varied so that:

i. The frequency of the practitioner's meeting with his supervisor is to be weekly

ii. The practitioner authorises the supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

i. Prescribing

ii. Medical records

iii. Patient examination and management

iv. Dealing with difficult patients

c. In addition to the supervision meetings the practitioner will undertake weekly observations with the Council approved supervisor for at least one hour duration. These will alternate between:

i. The supervisor observing the practitioner conduct patient consultations; and

ii. The practitioner observing the supervisor conduct patient consultations.

iii. Feedback about the observations are to be included in the supervision reports.

d. To authorise the Medical Council of NSW to provide approved supervisors with a copy of the decision which led to these conditions and/or any other relevant decision or report as determined by the Council.

6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit 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.

8. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW).

9. 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 New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

Conditions imposed by the Tribunal following Stage 2 Decision.

Practice Conditions:

1. The Practitioner must 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.

2. 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.

Health Conditions

3. [not for publication].

4. [not for publication].

5. [not for publication].

6. The Medical Council is the appropriate review body of these conditions for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

7. 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."

1. The variation to Order 2 sought by the parties does not change the effect of the orders made on 7 April 2025, but instead has the effect of clearly setting out, for the benefit of both the parties and the public, the conditions to which the respondent is subject as a result of the proceedings in the Tribunal.
2. I am satisfied it is appropriate for the orders sought by the parties to be made.
3. The parties further seek, by consent, an order under the National Law prohibiting the publication of certain health conditions to which the respondent's registration is subject. The order sought by the parties provides:

"The 'Health Conditions', conditions 3 to 5 of the Conditions imposed by the Tribunal following Stage 2 Decision, not be published under clause 7 of Schedule 5D and instead be marked [not for publication]."

1. Such an order must be made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) rather than under the National Law, as proceedings have concluded: Puri v Medical Council of New South Wales [2024] NSWCATOD 87 at [112].
2. Under s 64, the Tribunal may make such an order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. I am satisfied, having regard to the personal nature of the relevant conditions, that it is desirable to make a non-publication order.

(1) By consent, Order 2 of the orders made on 7 April 2025 is amended to provide as follows:

"(2) The Respondent's registration is to remain subject to the conditions in place as at the date of the Stage 1 hearing, and to be further subject to those conditions suggested in the Addendum (tendered 9 December 2024) to the Respondent's submissions dated 4 December 2024.

Conditions imposed by the National Board in place as at date of Stage 1 Hearing:

1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place(s) of practice.

2. To treat no more than 35 patients in any one day.

3. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW).

4. Not to possess, supply, administer or prescribe any `drug of addiction` (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).

5. To practise under category B 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 terms of the Council's Compliance Policy-Supervision are varied so that:

i. The frequency of the practitioner's meeting with his supervisor is to be weekly

ii. The practitioner authorises the supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.

b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

i. Prescribing

ii. Medical records

iii. Patient examination and management

iv. Dealing with difficult patients

c. In addition to the supervision meetings the practitioner will undertake weekly observations with the Council approved supervisor for at least one hour duration. These will alternate between:

i. The supervisor observing the practitioner conduct patient consultations; and

ii. The practitioner observing the supervisor conduct patient consultations.

iii. Feedback about the observations are to be included in the supervision reports.

d. To authorise the Medical Council of NSW to provide approved supervisors with a copy of the decision which led to these conditions and/or any other relevant decision or report as determined by the Council.

6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit 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.

8. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW).

9. 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 New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.

Conditions imposed by the Tribunal following Stage 2 Decision.

Practice Conditions:

1. The Practitioner must 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.

2. 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.

Health Conditions

3. [not for publication].

4. [not for publication].

5. [not for publication].

6. The Medical Council is the appropriate review body of these conditions for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

7. 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."

(2) By consent, the 'Health Conditions', conditions 3 to 5 of the Conditions imposed by the Tribunal following Stage 2 Decision, not be published and instead be marked [not for publication].

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.