Health Care Complaints Commission v Young [2019] NSWCATOD 191 | Case summary | Zoe

NSWNSWCATOD

Health Care Complaints Commission v Young

[2019] NSWCATOD 191

NCAT Occupational|2019-12-03

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NCAT Occupational

Decision date

2019-12-03

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Original judgment source is linked above.

Judgment (3 paragraphs)

[1]

(NSW) No 86a ("the National Law") Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Hon Young (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) No Appearance (Respondent) File Number(s): 2019/00247739 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting the publication of the names of the patients set out in the schedule to the complaint filed on 9 August 2019 or any evidence provided to the Tribunal in this case.

[2]

BACKGROUND

The Health Care Complaints Commission (HCCC) (hereafter referred to as either "the applicant", "the Complainant" or "HCCC") is the applicant for orders which, if granted would see the registration of the respondent as a medical practitioner, cancelled. The Application (also referred to herein as the Complaint document) was filed on 9 August 2019.
The respondent has not appeared at the hearing and the hearing proceeded on an undefended basis.
The failure of the respondent to attend was not a surprise. His former solicitor Ms Priestley appeared on 13 September 2019 at a directions hearing in the proceeding and advised the Tribunal she appeared for the respondent Dr Young. She informed the Tribunal at that time that the respondent would not appear at the hearing which was, on that day, set down for 3 December 2019.

The Complaint further alleges the respondent failed to observe proper professional boundaries in that he wrote letters to both Patient A and his then current medical practitioner (Medical Practitioner B).
Complaint Two alleges the respondent contravened a condition to which his registration was subject (s 139B(1)(c)). This complaint details in the particulars that conditions were imposed upon the respondent on 2 November 2016 pursuant to s 150 of the National Law. The conditions included that the respondent was prohibited from consulting with, examining, treating or performing any procedure on any patient under the age of 18 years. There was an exception which permitted the respondent to supply medical services to a person under 18 years only as "emergency medical services".
The Application then details particulars in which it alleges the respondent between 14 November 2016 and 30 May 2017 consulted with patients under the age of 18 years. He wrote prescriptions for persons under the age of 18 years. None of those services were provided as emergency medical services.
Complaint Three alleges the respondent is guilty of professional misconduct under s 139E of the National Law. It further asserts the respondent engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration. The complaint then relies upon the particulars set out for Complaints One and Two.
At TAB 2 of exhibit A1 the Evidentiary Certificate provided by AHPRA shows the respondent was first registered in 1982 and he surrendered his registration on 6 April 2018. The fact that the respondent is no longer registered at the time of the hearing leads to a requirement that the Tribunal consider the case on the basis that he was still registered and determine whether it would have been necessary and/or appropriate that his registration be cancelled. The applicant has framed the orders it seeks to accommodate this difficulty.
The applicant sets out in its written submissions detail of the standard of proof required to establish the complaints made. This standard is required notwithstanding that the action is being determined on an undefended basis.
The HCCC submits the following on "Standard of Proof". STANDARD OF PROOF "The burden of proof is upon the Commission to the civil standard of proof. That is, the Commission must prove on the balance of probabilities that the subject matter of the complaints against the Practitioner are established. Due to the seriousness of the allegations and the gravity of the consequences, the relevant standard of proof is that enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362-36, that is, that the Tribunal must be comfortably satisfied that the matters in the complaint have been established: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences… This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which a civil issue may, not must, be based upon a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained." The requirement for the Tribunal to be 'comfortably satisfied' does not import a third standard of proof hovering somewhere between the civil and criminal standards. It does not imply requirement of proof to a higher standard than the balance of probabilities.* The standard referred to in Briginshaw is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard, rather than creating a heightened standard of proof." (*Gianoutsos v Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Dr Suman Sood [2006] NSWMT 1 at [10].)
We accept the above submission.
The applicant relies upon the evidence of Patient A contained in the following documents:

The applicant also relies upon a Medicare data statement showing all services provided by the respondent to Patient A and also, a report by Dr Simon Young (Experts Report) dated 22 September 2017 at paragraphs 33 to 44.
The first written statement from Patient A is contained at TAB 4 of exhibit A1 and is in the nature of a complaint document. On page two of the document he states that between the ages of 12 and 16 (1985 to 1991) "on at least 4 occasions, Dr Young would examine me for a cold and then take my pants down and masturbate me. My mother would be in another room at the time." Further in the document Patient A said "I am frightened that Dr Young will contact me and maybe harass me about this."
On 4 November 2016 Patient A signed a formal "Statement" for the applicant. In that document he stated his date of birth as 10 February 1973. He said the complaint related to a time when he was about 13 years of age. He set out his history of employment and residences since he was a small child.
Patient A set out how he first had contact with the respondent. He said his mother suffered from migraines and attended upon the respondent for treatment. He had bronchiectasis and received treatment from the respondent for that condition.
Patient A set out what he remembered of the actions of Dr Young which he found objectionable. He stated he would attend upon the respondent because of a chest infection. He remembered being prescribed a medication called amoxicillin. He remembered as follows: "The occasions I remember him touching my penis would start off when he would ask me to lie on the examination table. He would then examine my neck glands with both hands. I don't think he ever had gloves on. He would then lift my shirt up and with the stethoscope move it around my chest quietly. After that he would pull my pants down and start playing with me. The first time I did not know if this was an examination, I didn't know what to think. And then he started to masturbate me. I didn't know what was happening. I didn't say anything. I did not get an erection and did not ejaculate. I had erections prior to that but on this occasion I did not feel aroused."
Patient A further said in his statement that Dr Young was "attempting to arouse me by fondling my penis and scrotum." He said "he was like smiling" whilst performing that action. The action by the respondent in touching and manipulating Patient A's penis and scrotum lasted for one and a half to two minutes duration.
Patient A said some of his memory about the respondent touching his penis was "a bit blurred". He did recall that on no occasion did he "get an erection" when touched by Dr Young.
Patient A remembered one occasion when the touching was different. On that occasion the respondent pulled Patient A's pants down while they were both standing. He said the respondent "fondled" him with both hands whilst looking at his penis and then at his eyes. He remembered that the respondent touched his genitals in that manner about four times however it may have been more times.
In his statement dated 26 October 2017 Patient A says that since making his earlier statement he has viewed documents being Medicare records of his attendances upon the respondent. The records show the respondent provided medical services to Patient A on thirty occasions between 9 July 1987 and 16 July 1990. He could not state the precise dates upon which he says the respondent touched his genitals and/or masturbated him. He said "I cannot say how many times the touching and masturbation occurred. It happened so often that I have lost count. It was a regular part of his examination." Patient A did recall the first occasion of masturbation occurred shortly after he commenced attending upon Dr Young.
Patient A recalled he reached puberty at the age of around 13 or 14.
At TAB 10 of exhibit A1 the applicant provides a copy of the first letter sent to the respondent about Patient A's complaint. The complaint was described as "You touched him, on about four different occasions, inappropriately and sexually, during the course of a medical examination." The letter is dated 17 October 2016.
On 7 December 2016 the respondent caused his solicitors TressCox to respond to the HCCC about the letter of 17 October 2016. That letter enclosed a statement of the respondent dated 2 November 2016. The letter also stated "Dr Young has no independent memory of Patient A or his mother." It further states "For absolute clarity, Dr Young vehemently denies the complaint by (the respondent). Dr Young has never engaged in inappropriate boundary violations with any patient. We are instructed by Dr Young he has no record of ever treating either the respondent or his mother and is not in possession of any medical records for the respondent or his late mother."
Attached to the letter from his solicitor to the HCCC there is attached a document titled "Statement of Dr Hon Young". It is signed by the respondent and dated 2 November 2016. He set out in that document his history of practice and details of his current circumstances.
In relation to the complaint received from Patient A the respondent said he had no independent memory of the respondent or his mother. He had no written record of ever seeing either. He stated "It appears (Patient A) may have the wrong Mann Street practice." That statement was prompted by an assertion he had never conducted a 24 hour practice. He also strenuously denied ever "inappropriately sexually touching any child."
On 26 October 2017 the HCCC wrote to the respondent and informed him a referral for the purpose of deciding if a complaint should be brought before a professional disciplinary body had been made. The letter informed the respondent that records provided by Medicare showed the respondent had provided thirty medical consultations for Patient A between 9 July 1987 and 21 July 1990. The letter also advised that an expert had been engaged to consider the complaint of Patient A and had concluded, based upon the evidence of Patient A, that the respondent had engaged in "sexual misconduct because the doctor exploited his position of power with a vulnerable patient by inappropriate intimacy."
At TAB 18 of exhibit A1 the applicant provides a copy of the decision published by the Medical Council of NSW on 17 November 2016. That body made an order pursuant to section 150(1)(b) of the National Law (NSW) which imposed conditions upon the registration of the respondent. The conditions are referred to earlier in these reasons. We emphasise the restraint upon the respondent consulting with, examining, treating or performing any procedures on any patient under the age of 18 years. There was an exception for emergency medical services.
TAB 19 of exhibit A1 contains a transcript of an interview with the respondent conducted by Dr A. Glass and Dr L. Killen on 2 November 2016. At page 8 of that document the respondent is recorded as having said he had no memory of Patient A nor did he have any record for Patient A. He also said "if he was my patient I wouldn't have done anything like masturbating him…which is really appalling."
The thrust of the evidence given by the respondent on 2 November 2016 was that he had no recollection of Patient A as a patient or otherwise.
Dr Simon Young (no relative of the respondent) was engaged as an expert by the HCCC. He provided a report which answered questions posed by the HCCC. The expert said at page 9 of his report (TAB 21 exhibit A1) "It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct."
The expert was asked: Patient A has stated that at the time he saw Dr Young he suffered from low testosterone and gynaecomastia. Is there any clinical justification for a medical practitioner in these circumstances to: Touch a patient's genitals; Masturbate a patient; or, Touch and masturbate a patient on a number of occasions? The expert replies that the statement of Patient A does not mention low testosterone and gynaecomastia - this is recorded in Dr N'Relle Armstrong's notes and statement. He further said "It may be appropriate for a GP to examine, with due consent, a patients genitalia in the clinical scenario of low testosterone, especially to check testicular volume. There is no clinical justification to ever masturbate a patient."
At TAB 26 of exhibit A1 is a copy letter received by Dr N'Relle Armstrong, Patient A's current medical practitioner. The letter is authored by the respondent. The letter is dated 3 February 2018. In the letter the respondent said, inter alia, "I saw the respondent 20 odd occasions from 1987 to 1990. He usually presented with asthma and I have been treating him for those 4 years." "The allegation that I sexually abused him (Patient A) was not correct."
At TAB 27 of exhibit A1 is a copy letter from the respondent to Patient A dated 5 February 2018. The letter included the following: "The letter that your doctor wrote said you have been sexually abused by your GP was very hurtful and I don't think that was correct. You came in to see me voluntarily. In the 4 year period I have never forced or asked you to take your pants off. I never forced anything upon you and I had never asked you to do anything to me. I purely try to help while you were in searching sexual experience during your development when you were growing up to adulthood. The result might not be satisfactory to you or to your liking. I hope you do not hold grudges for that. If that has caused you emotional anguish, I deeply and sincerely apologise for that."
The two letters, above set out, do not in our view suggest the respondent had no recollection of Patient A. Quite the contrary. The letter to Patient A in particular has all the hallmarks of a confession. It is hard to place any other interpretation upon it.
It is particularly troubling to us that the respondent considered it appropriate to write to either Patient A or his medical practitioner at any time following the making of the complaint and particularly when Patient A had already stated in his hand written document that he feared the respondent would contact him and "maybe harass" him.
On 16 January 2018 the HCCC wrote to the respondent (TAB 32 of exhibit A1) advising it had evidence that he had contravened the conditions imposed upon his registration on 2 November 2016. The alleged contravention was that he had consulted with and/or treated patients less than 18 years of age. Details of the patients he saw and the dates of the consultations were provided.
On 22 March 2018 the HCCC wrote to the respondent (TAB 33 exhibit A1) informing him evidence had been received that he had written a letter to Patient A dated 5 February 2018 and to his GP Dr Armstrong on 3 February 2018. The Commission required the respondent to appear before it on 19 April 2018 and give oral evidence and produce documents.
Also, on 22 March 2018 the HCCC wrote to the respondent informing him he was required to attend at the HCCC offices on 19 April 2018 and give evidence in relation to a complaint that he had provided medical services to 19 named persons who were said to be under 18 years of age at the time the service was provided. The provision of medical services to such persons was said to be contrary to conditions attached to his registration.
On 19 April 2018 the respondent participated in an interview with two persons appointed by the HCCC to conduct the interview pursuant to s 34A(1)(c) of the Health Care Complaints Act 1993. He was informed prior to the interview beginning that he could pursuant to s 37A of that Act object to answering questions on the ground that it may incriminate him. He was informed that if he did object to a question he could be required to answer however the answer could not then be used in evidence against him in any civil or criminal proceeding. The respondent said he did wish to avail himself of s 37A. Somewhat contradictorily he was then told the interview would be recorded and "may be used as evidence later". He was asked "Do you understand that?" He replied yes. The respondent was represented at the interview by his solicitor.
The applicant relies on part of the transcript of that interview. At page 20 the respondent was asked about the content of the letter he wrote to Patient A. He was asked "Now, you say to him that he was searching for sexual experience. What does that mean?" No objection was taken by his solicitor to that question. However, given what was told to the respondent at the commencement of the interview, it is unclear to us whether the respondent understood that the totality of the interview became incapable of being used in any civil or criminal proceeding against him. His answer, as recorded to the question about whether he wished to avail himself of the benefit (clearly in this context meaning protection) of s 37A was "yes".
We conclude that it is unsafe to allow the applicant to rely upon any evidence in the written transcript of the interview conducted on 19 April 2018.
The applicant submits that the evidence of Patient A stands unchallenged. We note that Patient A did give oral evidence at the hearing and was therefore available for cross-examination had the respondent attended the hearing. Patient A, on his oath taken at the hearing, informed the Tribunal that the writing set out in the statements signed by him were true and correct.
We have considered the evidence of Patient A. We conclude it has all the hallmarks of reliable evidence. There is nothing about the content of the evidence he gives in his statements (TABS 4, 5 and 6 of exhibit A1) which appears inherently unbelievable. The investigations conducted by the applicant provided independent evidence of the number of attendances Patient A had with the respondent and the dates thereof. Although the attendances were far more numerous than the patient could initially recall we find his evidence of the occurrences which disturbed him are, on the requisite standard, established to our satisfaction. The allegations do not appear to us to be the subject of recent fabrication by Patient A. The evidence establishes that Patient A had raised his concern about the behaviour of the respondent towards him whilst he was conducting a medical examination and at a time when Patient A was a minor, with other responsible members of the community. We also accept that Patient A does not demonstrate any other motivation for making the original complaint to the HCCC about the respondent, other than a concern that no other child is treated in the same manner he was treated by the respondent.
The applicant asks the Tribunal to draw an inference from the failure of the respondent to attend at the hearing. It is submitted that we are entitled to "draw the inference that his (the respondent's) evidence in the proceedings would not have assisted his case".
We choose not to take up that offer. The allegation of Patient A clearly has the potential to give rise to a criminal prosecution of the respondent. We are put on notice of such a possibility not only by the content of the complaint but additionally, the "Statement of Police" which appears at TAB 7 of exhibit A1, is stated to be "In the matter of: Sexual Assault of (Patient A)".
We find that it is sufficient for this case for us to conclude that the evidence of Patient A stands as unchallenged by the respondent albeit that he has been given the opportunity to be present at the hearing and question Patient A had he chosen to do so. In such a hearing the respondent could also have declined to give oral evidence himself.
Our conclusion is therefore that the applicant has established, to our satisfaction, Complaint One, Particular One.
In relation to Complaint One, Particulars Two and Three, we are satisfied the applicant has established that complaint. We have set out the detail of those Particulars earlier in these reasons and have set out the evidence to support that finding.
Complaint Two alleges the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that the practitioner has contravened a condition to which his registration was subject.
As stated earlier, the HCCC imposed a condition on the registration of the respondent which prevented him treating persons under the age of 18 years except in an emergency. The evidence which has been provided by the applicant convinces us that the respondent did treat or consult with persons under the age of 18 years during the time the condition was imposed upon his registration. Further, this was not a case of an accidental slip with one patient who the practitioner could reasonable argue he thought was over the age of 18 years. In this case there were 19 individuals under the age of 18 seen by the respondent.
We have seen the evidence relied upon by the applicant to establish this complaint and we are satisfied the complaint is established.
The applicant moves on Complaint Three. This complaint asserts the respondent is guilty of professional misconduct under s 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration OR; he has engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the respondent's registration.
The applicant relies on the particulars and complaints set out as numbered One and Two.
The applicant seeks the registration of the respondent be cancelled. It seeks that the Tribunal consider the case on the assumption that the respondent was still a registered medical practitioner, when, the evidence establishes that the respondent surrendered his registration.
The applicant in its written submission provided the following on what the Tribunal might find is "Unsatisfactory professional conduct and professional misconduct". "Principles 32. With respect to unsatisfactory professional conduct pursuant to section 139B(1)(a) of the National Law the Tribunal applies the general principle that "the use of the term "significant" may in law be taken to mean not trivial, of importance or substantial."* That test may be satisfied by a single act or omission or by a pattern of conduct that demonstrates the Practitioner's lack of skill, judgement or care.** 33. With respect to unsatisfactory professional conduct pursuant to section 139B(1)(l), in Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [68]-[69] the Tribunal held that "improper" and "unethical", not being defined in the National Law, have their ordinary meaning such that "improper" means "not in accordance with propriety of behaviour, manners etc. or abnormal or irregular" and "unethical" means "contrary to moral precept; immoral … or … in contravention of some code of professional conduct". The same Tribunal stated that when conduct "is not in conformity with standards of professional conduct and practice it can be seen as improper."*** 34. In Health Care Complaints Commission v Little, the Tribunal also found that conduct can simultaneously be unsatisfactory professional conduct pursuant to section 139B(1)(a) and s 139B(1)(l) (at [57]-[61]). 35. The aspects of the Tribunal's decision in Little summarised above were applied by the Tribunal in Health Care Complaints Commission v Gupta [2018] NSWCATOD 153 at [71]-[73] and Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 at [21]. 36. In considering whether unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, and thus amounts to professional misconduct pursuant to s 139E of the National Law, the Tribunal applies the principle that: "The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards."**** 37. As observed in Chen v HCCC [2017] NSWCA 186 at [19]-[22] by Basten JA, the term "professional misconduct" does not have a specific meaning. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of suspension or cancellation - the only requirement is that it be "sufficiently serious" to justify such an order. Such a characterisation depends upon an evaluative judgment made by the Tribunal as to the nature and seriousness of the conduct." (*Re A Medical Practitioner and the Medical Practice Act, Medical Tribunal of New South Wales, 3 September 2007 at [12]. **Ibid at [11]. ***Ibid, [69]. ****Health Care Complaints Commission v Litchfield at 638.)
We accept the above submission as a helpful outline of applicable principle.
The applicant submits the evidence in this case establishes the respondent has conducted himself in a manner which can only reasonably be defined as professional misconduct. We agree with the conclusion of Dr Simon Young (the expert) that the respondent "exploited his position of power with a vulnerable patient by inappropriate intimacy."
The behaviour of the respondent in consulting with and/or treating patients under 18 years at a time when he was not permitted to do so under the conditions attached to his registration really, so far as we are concerned remains absent any reasonable explanation. We do not accept that a practitioner the subject of serious restrictions, such as the condition under consideration, can simply forget about it during the time he saw a patient under 18 years of age. We are satisfied that for whatever reason, the respondent chose to ignore the condition.
We are satisfied the protective orders sought by the applicant are appropriate orders to make. We are satisfied the safety of that portion of the public who are minors, is at serious risk if the registration of the respondent is not cancelled. In the absence of the Tribunal being able to hear from the respondent and be in a position to be satisfied he did not abuse Patient A as the patient alleges, we conclude the only protective order which is available to protect the public, is the cancellation of the respondent's registration and we will so order.
The applicant seeks an order that the respondent pay the legal costs of the applicant incurred in the proceeding.
The applicant provides written submissions which support the order it seeks. The applicant relies on the decision of the Tribunal in Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 at [55] where her Honour Boland ADCJ said: "The principles relevant to the exercise of discretion in awarding costs are the subject of recent discussion in the High Court of Australia in Northern Territory v Sangare [2019] HCA 25. The High Court stressed that the awarding of costs is a discretionary matter, but the discretion must be exercised judicially by reference to relevant considerations. Their Honours further explained the general rule that costs follow the event is not affected because of a respondent's impecuniosity, rather a successful party should be compensated for the expenses it has incurred. The circumstances where the successful party is a public authority is also irrelevant (see also Oshlack v Richmond River Council (1998) 193 CLR 72). These long established principles are also relevant to professional disciplinary proceedings (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342)."
We conclude that the costs order sought by the applicant is an appropriate order to make in this case. We can find no reason for the applicant's costs to be reduced in any measure through the manner in which the case was conducted or because of failure to establish part of the case which is brought against the respondent. We will so order.
In submission the applicant submitted the cancellation period should be for six years. The applicant said the Tribunal would take into account the following matters in determining what period of cancellation to impose:

We consider the above list of considerations is a good guide to determine the discretion which reposes in the Tribunal in relation to the length of the period of cancellation. In relation to those considerations we are satisfied the conduct of the respondent falls into the most serious category of misconduct which might present itself to a practitioner. The public can only be protected in this case from the respondent by a lengthy period of cancellation.
The respondent has demonstrated no contrition to the Tribunal because he has failed to appear to undertake such a task. There is no evidence that the respondent has taken any action which might address the complaint made by Patient A.
The respondent is now 64 years of age. Six years of cancellation will take him to the age of 70. He could then apply for his registration to be reinstated provided he was in a position to have the Tribunal seriously consider such an application because of evidence not available to us or because of what has occurred post the making of these orders.
The orders we propose to make therefore are as follows: 1. Pursuant to section 149C(4)(a) if the Practitioner were still registered, the Tribunal would have suspended or cancelled the Practitioner's registration. 2. Pursuant to section 149C(4)(b) the Practitioner is disqualified from being registered as a medical practitioner for a period of six years. 3. Pursuant to section 149C(4)(c) the National Board is to record the fact that the Tribunal would have suspended or cancelled the Practitioner's registration in the National Register kept by the Board. 4. Pursuant to section 149C(7) the practitioner is prevented from seeking a review of the disqualification order for a period of six years from the date hereof unless he can satisfy the Tribunal that this order would not have been made had the practitioner presented evidence which is available to him at the time of seeking any such review. 5. Pursuant to section 149C(5A) the practitioner is prohibited from providing a "health service" as defined in section 4 of the Health Care Complaints Act 1993 unless and until he is registered as a health practitioner. health service includes the following services, whether provided as public or private services: (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act. 1. 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). 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting the publication of the names of the patients set out in the schedule to the complaint filed on 9 August 2019 or any evidence provided to the Tribunal in this case.

Health Care Complaints Commission v Young

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Judgment (3 paragraphs)

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