Kaye v Health Care Complaints Commission

NCAT Occupational|2018-02-14

Health Care Complaints Commission (Solicitors) File Number(s): 2016/00378460

Reasons FOR DECISION

Following an investigation into a complaint made by a member of the public, the Health Care Complaints Commission (the Commission), decided to prohibit David Kaye from providing mental health services for a period of six months and, after the expiration of that period, to prohibit him from providing mental health services unless he obtained a Level 5 qualification in counselling (the original decision). In addition, the Commission issued a public statement under the Health Care Complaints Act 1993 (NSW) (HCC Act) Section 41A(2)(b) permits the Commission to cause a public statement to be issued identifying and giving warnings or information about, a health practitioner found to, among other things, have breached the Code of Conduct for unregistered health practitioners (the Code).
Mr Kaye applied to the NSW Civil and Administrative Tribunal (NCAT) for review of that decision. After conducting a review of the original decision, we found (as had the Commission) that Mr Kaye had breached the Code and posed a risk to the health and safety of members of the public: Kaye v Health Care Complaints Commission [2017] NSWCATOD 157. In reasons for that decision, we expressed our preliminary view that the orders made by the Commission were insufficient to protect the health and safety of the public: [191].

Request for an adjournment

At the commencement of the hearing on 14 February 2018, Mr Kaye applied for an adjournment. He claimed that the day before the hearing he had been informed that his counsel, Mr Cohen, was unable to appear as he was acting in another matter. In addition, Mr Kaye claimed that he had attempted without success to engage replacement counsel. Mr Cohen had appeared for Mr Kaye on the first but not the second day of the hearing (2 May 2017). In addition, he prepared written submissions on behalf of Mr Kaye addressing the issue of whether the Tribunal should make a prohibition order: see submissions filed by Mr Kaye on 19 January 2018.
Mr Kaye requested that the hearing be adjourned to a date when Mr Cohen was available. He advised that Mr Cohen was engaged in a matter that was expected to run for about three weeks.
The Commission opposed the application. Counsel for the Commission, Ms Harstein pointed out that all parties had been on notice of the hearing date for over eight weeks.

Statutory framework

The Tribunal has power to adjourn proceedings: s 50 of the NCAT Act. Guidance about the exercise of the discretion is contained in the Administrative and Equal Opportunity Division Guideline Occupational Division Guideline on Adjournments, August 2017. In deciding whether to exercise or not to exercise the discretion we must have regard to the "guiding principle" of the NCAT Act, namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. In addition, we must have regard to our obligation to take such measures as are reasonably practicable to ensure that all parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act.
Further, in determining the adjournment application we must have regard to the overall requirements of justice in the particular circumstances: Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [131], [132]; Cameron v Ozzy Tyres Pty Ltd [2016] NSWCATAP 70 at [65].

Factors relevant to the exercise of the discretion

The following factors weigh in favour of the exercise of the discretion.
First, the serious consequences for Mr Kaye if a prohibition order were to be made in the form sought by the Commission, which includes the potential loss of his livelihood. The Commission, in written submissions dated 5 February 2018, wrote that it sought an order prohibiting Mr Kaye from providing any health service on a permanent basis.
Second, the fact that if the matter were to be adjourned, it is unlikely that the Commission would suffer any substantial prejudice.
Third, Mr Kaye's interests which are likely to be better served if he were to be legally represented at the final stage of these proceedings, where the critical issue of whether a prohibition order should be made will be determined.
The following factors weigh against the exercise of the discretion.
First, Mr Kaye, and presumably Mr Cohen, had eight weeks' notice of the hearing. In the intervening period between being notified of the allocated hearing date and the hearing itself, the Tribunal received no information to indicate that there was a possibility that Mr Cohen might not be available on 14 February 2018.
Second, as pointed out by the Commission, this was the second occasion Mr Cohen is said to have become unavailable to appear in these proceedings, the first occasion being on the second day of the hearing, 2 May 2017. We were not offered any assurance that if an adjournment were to be granted Mr Cohen would not once again find himself with a conflicting commitment. Further, we note that neither Mr Cohen nor Mr Kaye attended the directions hearing on 12 December 2017 or provided an explanation for their non-attendance. The directions hearing had originally been listed on 21 November 2017 and was adjourned to 12 December 2017 at the request of Mr Kaye for Mr Cohen's convenience. (See email sent by Mr Kaye to the NCAT Registrar on 15 November 2017.)
Third, Mr Kaye has the advantage of written submissions prepared by Mr Cohen.
Fourth, Mr Kaye was familiar with the issues to be determined at the hearing on 14 February 2018. While not legally qualified, he had previously represented himself in these proceedings. Mr Kaye did not submit, and nor is there any evidence to suggest that because of a disability or some other disabling factor he was unable to speak to the written submissions prepared by Mr Cohen.
Fifth, one of the objects of the HCC Act, the protection of the public, requires that the question of whether the original decision was the correct and preferable decision is to be determined without further delay.
Sixth, the achievement of the just, quick and cheap resolution of the issues in proceedings requires consideration to be given the wider objects of the administration of justice and the interests of other parties seeking to have their matters determined: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 at [51]; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 [92]- [93], 213 [98]. Last year over 66,000 applications were filed in NCAT: NSW Civil and Administrative Tribunal, NCAT Annual Report 2016-2017 (2017) 5. The Tribunal has an obligation to ensure that its finite resources are appropriately and proportionately used. Granting adjournments too readily might impact on the speed with which applications made to NCAT can be determined.

Conclusion

As set out above, the exercise of the discretion to grant an adjournment requires us to have regard to the guiding principle - the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. Having regard to the overall requirements of justice in this case, we must also evaluate whether the refusal of the request for an adjournment might effectively deny Mr Kaye a reasonable opportunity to present his case.
Applying those principles, we conclude that the balance of factors weighs against the exercise of the discretion to grant an adjournment. In reaching that conclusion we acknowledge that the Commission would not suffer any significant prejudice if the matter were to be adjourned and any prejudice suffered could probably be cured by an order for costs. However, that is merely one of a number of factors we must take into account. Also relevant is any prejudice likely to be suffered by the public and Mr Kaye himself if the application were to be refused or granted.
In our view, the interests of the public are likely to be prejudiced in two ways if the adjournment were granted. The trigger for the application was a complaint made by a former client of Mr Kaye to APHRA nearly four years ago. The initiating application made to NCAT has now been on foot for 18 months. The issues raised in that application potentially impact on the health and safety of the public. In our view, it is in the public interest that the issue of the appropriate form of orders be finalised without further delay. In addition, the wider objects of the administration of justice and the interests of other NCAT users and the public at large, favours the timely determination of this application.
We accept that it would be in Mr Kaye's interests to be legally represented in the final stages of these proceedings. If a prohibition order is made, this is likely to have serious consequences for Mr Kaye and his livelihood, especially if made in the form sought by the Commission. However, it does not follow that if Mr Kaye were not legally represented he will have been denied a reasonable opportunity to be heard or otherwise have his submissions considered. Section 38(5)( c) of the NCAT Act requires us to take such measures as are reasonably practicable to ensure that Mr Kaye has a reasonable opportunity to be heard or otherwise have his submissions considered in the proceedings. It does not require that he be provided with every opportunity to be heard. As noted above, Mr Kaye is familiar with the issues now to be determined, he has the benefit of written submissions prepared by counsel, he is squarely on notice that the Commission seeks a permanent prohibition order, and, he does not claim and nor is there any evidence to suggest that because of a disability or some other disabling factor he is unable to represent himself in these proceedings. Nonetheless, we accept his interests would be better served if he were legally represented in the final stage of these proceedings. We also accept that the facilitation of the just resolution of the real issues in the proceedings, is not limited to a consideration of whether a party has been denied procedural fairness.
Finally, as discussed above, the available material provides us with no sense of assurance that if the matter were to be adjourned that Mr Kaye would not again find himself without legal representation. For these reasons, in addition to those discussed above, we have concluded that the balance of factors weighs against granting an adjournment.

Findings on review

In the original decision, the Commission found that "persistently over a considerable period of time" Mr Kaye had misrepresented his educational and professional qualifications, was not qualified to carry out counselling services, provided health services in an unsafe and unethical manner, and posed a risk to the health and safety of the public. The Commission made orders under s 41 of the HCC Act prohibiting Mr Kaye from: (1) Providing counselling of any description and any other mental health services in a paid or voluntary capacity for a period of six months. (2) And thereafter, providing counselling of any description or any other mental health service unless he satisfies the Commission that he has successfully completed a Level 5 qualification in counselling from an accredited institution.
In addition, the Commission decided to issue a public statement in relation to Mr Kaye under s 41A(2)(b) of the HCC Act. Set out at Annexure A to our reasons for decision in Kaye v Health Care Complaints Commission [2017] NSWCATOD 157, the statement explains the background to and reasons for the decision to subject Mr Kaye to a prohibition order.
On review of the original decision we found that: 1. Mr Kaye falsely represented that he held a BA (Hons) from Monash University, a "BA Major in Psychology" from Swinburne University and a Graduate Diploma in Counselling from Royal Melbourne Institute of Technology (RMIT and a "BA Major in Psychology" from Swinburne University: at [124]. 2. The representations made by Mr Kaye to Client A and others through his CV, business cards and other material went further than merely representing that he held academic qualifications which he did not hold. The combined effect of the use of the title "Dr" and the post nominals "BA (Hons) (Psych) (PhD)" was to represent that he held recognised qualifications relevant to the fields of counselling and psychology. By this conduct, Mr Kaye misrepresented his qualifications and training: at [127]. 3. Mr Kaye contravened cl 12(1) of the Code, which provides "A health practitioner must not engage in any form of misinformation or misrepresentation in relation to the products or services he or she provides or as to his or her qualifications, training or professional affiliations": at [129]. 4. Mr Kaye contravened cl 3(2)(b1) of the Code by undertaking a health assessment and providing an opinion about diagnosis and treatment in respect of Patient A: at [140]. Clause 3(2)(b1) of the Code provides that an unregistered health practitioner must not provide services he or she is not qualified to provide. 5. Mr Kaye lacked an adequate clinical basis to make a diagnosis of Post Traumatic Stress Disorder, Major Depressive Disorder and severe Borderline Personality Disorder [in respect of Patient A], and in doing so contravened cl 11 of the Code: at [172]. Clause 11 of the Code states that a health practitioner must not diagnose or treat an illness or condition without an adequate clinical basis.
Having found Mr Kaye had breached the Code, we went on to find at [184], that he poses a real and material risk to the safety of the members of the public, reasoning: 173 [A]ccordingly, the question posed is not whether Mr Kaye was but whether Mr Kaye is a risk to the health or safety of members of the public. This requires an assessment of the likelihood that any conduct found to have been in breach of the Code will be repeated and an assessment of whether that conduct poses a risk to the health or safety of the public. 174. A health practitioner who makes or purports to make a diagnosis of a mental health condition, in circumstances when they lack the qualifications and/or an adequate clinical basis to do so, places the person diagnosed at risk. Depending on the nature and severity of the condition, persons in the care of the diagnosed person, and others, might also be placed at risk. In the case of Client A, on the basis of a diagnosis he was not qualified to make, Mr Kaye made recommendations about Clients A's ability to work and the types of treatment she should receive. Whether anyone acted on those recommendations is not to the point. There was a real and material risk that as a result of that diagnosis a third party (or Mr Kaye himself) might provide an inappropriate form of treatment. This placed Client A at risk. 175 Mr Kaye did not argue, and nor is there material to suggest, that Client A was a one-off or an exceptional case. The available evidence supports a finding that Mr Kaye routinely diagnosed and went on to treat clients referred to him for assessment and /or treatment. 176 By misrepresenting his qualifications relevant to the practice of counselling and psychology, Mr Kaye misled his clients and those who referred them to his care. This misrepresentation led them to rely on him to provide relevant health services in respect of the particular mental health problems which caused the person to seek, or be referred for, counselling. That reliance was misplaced. Mr Kaye was not suitably qualified to provide the relevant health service. That conduct placed those clients at risk because he was not qualified to diagnose the clients despite purporting to do so. This created the risk of wrong diagnosis and therefore wrong treatment or therapy. 177 The undertakings offered to the Commission on behalf of Mr Kaye in September 2106 are relevant to determining whether there is a real and material risk that in the future Mr Kaye might misrepresent his qualifications. In submissions to the Commission dated 8 September 2016, counsel for Mr Kaye advised that he undertook not to use the title "Dr" or the post nominal "PhD" or state that he held a Bachelor of Arts majoring in psychology from Swinburne University (or elsewhere) "in the absence of the award of the same". 178 For the following reasons we are have concluded that there is a risk that Mr Kaye might not honour this undertaking. 179 First, for a number of years Mr Kaye has been warned about the potential of the impugned representations to mislead, yet he has continued to make those representations. For example, since at least 2009 he has been on notice that his use of the post nominal PhD has the potential to represent that he had been awarded a PhD by an accredited tertiary institution in an area relevant to his field of practice. Nonetheless, Mr Kaye continued to use that post nominal in promotional and other material. The purported Swinburne qualification provides a further example. Mr Kaye has been on notice for a number of years of the misleading character of the representation made about that qualification. Nonetheless, as recently as September 2016, when Mr Kaye advised the Commission that he had amended his CV to ensure it did not contain "any information that is misleading or factually incorrect", the amended CV carried this entry under the heading "Qualification": "APS & APAC Accredited Major in Psychology. Swinburne University". The answers given by Mr Kaye when questioned about whether in his opinion this was an accurate representation indicated that fails to acknowledge the capacity of the repletion to misrepresent his qualifications. 180 Second, the weight of evidence is that Mr Kaye is either unable or unwilling to acknowledge that by his conduct he has held himself out as having qualifications relevant to psychology and counselling. 181 Third, Mr Kaye has a history of convictions for offences of dishonesty raising concerns about his character. While it is not inevitable that as a consequence he will continue to misrepresent his qualifications, it raises doubts whether he will honour the undertaking given to the Commission. That concern is heightened by the many examples throughout the evidence of Mr Kaye's lack of candour. For example, in the declaration made in his application for membership of the ACA he declared he had not been convicted of a criminal offence and claimed he held qualifications he did not hold. In evidence given to the Supreme Court on 11 May 2016, he gave conflicting evidence when questioned whether he held a BA with a major in psychology from Swinburne. 182 In addition, on the available evidence we are not satisfied that in the future Mr Kaye would discontinue the practice of diagnosing clients and making recommendations about their treatment. In reaching that conclusion we note that, first, in these proceedings he steadfastly refused to concede he had made a diagnosis Client A. Second, nonetheless it is apparent he has every confidence about his ability to diagnose and treat persons with mental health problems. In 2009, when interviewed by NSW Police he said: I don't ... formally diagnose patients I've spent 24 years providing counselling services. I know depression when I see it, I know schizophrenia when I see it, I know someone who's anxious when I see it. I don't need to DSM4 to diagnose, they're just labels. 183 The available evidence indicates that Mr Kaye continues to hold such views. It was apparent from the evidence given and submissions made in these proceedings that he does not appear to even entertain the possibility that the mental health of persons who come to him for assistance may be at risk because of his practice of providing health services that he is not qualified to provide.

Should a prohibition order be made?

Our task, on review, is to determine whether the original decision is the "correct and preferable" decision: s 63(1) of the Administrative Decisions Review Act 1997 (NSW). In undertaking that task, we must have regard to the material before us, including any relevant factual material and applicable written or unwritten law: s 63(1) of the Administrative Decisions Review Act. We may affirm, vary, or set aside the original decision. If the decision is set aside, we may substitute our own decision for that of the Commission, or remit the matter to the Commission together with any directions or recommendations: s 63(3) of the Administrative Decisions Review Act.
The power to make a prohibition order and issue a statement about a health practitioner (defined to include an un-registered health practitioner) is conferred by s 41A of the HCC Act, which states: PROHIBITION ORDERS AND PUBLIC STATEMENTS (1) The Commission may take action under this section if: (a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and (b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and (c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order") that does any one or more of the following: (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note: Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner.
The Commission submits that in light of our findings that Mr Kaye had breached the Code and poses a risk to the health and safety of the public, the only appropriate order is a permanent prohibition order, which extends to all health services.
In written submissions in support of the adjournment application, Mr Kaye wrote that the "permanent ban" sought by the Commission is "draconian and punitive" and motivated by "improper purpose". He urges us to dismiss the application by which we understand him to mean that we should set aside the original decision and make no orders under s 41A(2). In both oral and written submissions, he repeated the argument he made throughout these proceedings that the type of service he provided to Client A was not a "health service" but rather counselling and "medico-legal" services, and therefore the power to make orders under s 41A(2) is not enlivened. (see Reasons at [142] - [168].)
In deciding whether to affirm, vary, or set aside the original decision, the health and safety of the public is the paramount consideration: s 3(2) of the HCC Act. We are not aware of any decision which has considered the power to make a prohibition order under s 41A(2). In our opinion, useful guidance can be derived from the principles developed in relation to the exercise of the power to make orders under Part 8, Division 3, Sub Division 6 of the Health Practitioner Regulation National Law (NSW) in respect of registered health practitioners. These include: 1. The jurisdiction is protective not punitive, but nonetheless such orders may be punitive in effect and that punitive effect may be relevant in formulating an order: see for example Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. 2. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [114].
In reasons for decision, we expressed the view that given the serious nature of Mr Kaye's conduct which we found to amount to a contravention of the Code, the orders made by the Commission were insufficient to protect the health and safety of the public: [191]. We went on to raise a more "fundamental concern" namely whether the type of risk Mr Kaye poses to the health and safety of the public was capable of being remedied by obtaining further educational qualifications of the type mandated in the original decision. We wrote at [192]: The long history of Mr Kaye misrepresenting his qualifications together with the evidence of providing health services he is not qualified to provide, raises concerns about Mr Kaye's suitability to practice as a counsellor. Mr Kaye's response when notified of the complaint made by Client A was to accuse her of having fabricated evidence and to attribute this to a severe personality disorder. His readiness to make such allegations raises further concerns about his suitability to provide mental health services.
The conduct found by us to amount to a breach of the Code was serious in nature. Not only has Mr Kaye failed to demonstrate insight or remorse for that conduct, for the most part he denies it occurred. We were left unconvinced that he would honour the undertaking offered in 2016 to the Commission by his legal representatives not to misrepresent his qualifications (see 177]). Indeed we were left with the impression that he persisted in his belief that he had not misrepresented his qualifications. He stated at the hearing that he is continuing to seek redress from Swiburne for its failure to confer an awards he believes that he is entitled to receive. In addition, Mr Kaye did not address the misgivings we expressed about whether he would honour the undertakings offered by his legal representatives to the Commission about his use of the tile "Dr" and reference to his purported educational qualifications: see [177] - [183], reproduced at [29] above.
In written submissions Mr Kaye did not address whether conditions could be imposed under s 41A(2)(ii) to address our concerns about the risk he posed to the public. In oral submissions, he stated he was prepared to submit to a condition that he work under supervision. He mentioned that in the past he had worked under supervision and claimed that he had sought to obtain a supervisor in Sydney, apparently without success. He provided no particulars about how the proposed supervision condition might operate, whether it would be monitored, and if so, the mechanism for doing so.
The order sought by the Commission is broad in scope. It is the widest form of prohibition order that can be made under s 42A(2). If made, Mr Kaye will be permanently prohibited from providing any health service. It is likely to have a severe impact on his livelihood and possibly may be personally devastating. As he points out he has worked in the health and related sectors since 1985. However, we have decided it is appropriate to make a prohibition order which is both permanent and extends to all health services given the seriousness of the conduct found by us to have contravened the Code, the absence of any evidence of rehabilitation, insight or remorse and the real and material risk that the conduct found by us to contravene Code may be repeated if Mr Kaye were to continue to provide health services. We are not satisfied that the educational qualification condition imposed by the Commission in the original decision, or the supervision condition foreshadowed by Mr Kaye are likely to reduce that risk to one that is not real and material. Alternative conditions which might achieve that purpose are not apparent from the available material. For these reasons, we have decided to make the orders sought by the Commission.

Form of order

The Commission urged us to make an order which gave examples of the type of services that fell within the scope of the prohibition order. The Commission contended that this was necessary given Mr Kaye's insistence that the services he provided to Client A were not health services and therefore did not give rise to a contravention of the Code. (See Reasons [40] - [64])
On one view, formulating the order in this way is unnecessary. We accept, however, that it might be useful to provide some clarification about the type of services caught by the definition of health service under s 4 of the HCC Act. For that reason, we made the following notation to the order: Note: For the purpose of this order "health service" carries the meaning given by s 4 of the Health Care Complaints Act, and includes but is not limited to, the following types of health services: mental health counselling, hypnotherapy, psychotherapy and providing medico-legal opinion or advice relating to personal injury or similar claims.
Neither party made submissions about whether the statement issued by the Commission under s 41A (2) should be amended. We decided no useful purpose would be served in making a further order about the statement.

Should an order for costs be made?

The Commission seeks an order for costs. The Commission points out that the proceedings were initiated by Mr Kaye and asserts that the application was without merit. In addition, the Commission points out that we found Mr Kaye lacked candour and that were unable to rely on an undertaking he had previously given to the Commission: at [181].
Mr Kaye opposes the application for costs and submits that special circumstances have not been established. Further, he contends that the order sought by the Commission is motivated by "revenge and retribution" and will cause him immense financial hardship.
Section 60(1) of the NCAT Act establishes the general principle that each party is to pay its own costs. The Tribunal may only award costs if satisfied that there are "special circumstances" warranting an award of costs: s 60(2) of the NCAT Act. Section 60(3) of the NCAT Act sets out a non-exhaustive list of factors the Tribunal may have regard to in determining whether there are special circumstances warranting an order for costs: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
The term "special circumstances" is not defined in the Act and has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31].
Not only was Mr Kaye unsuccessful in challenging the key findings made by the Commission in the original decision, the ultimate orders made by us were less favourable to him than those made by Commission. However, the fact that Mr Kaye exercised his right of review but was not successful in having the decision set aside, does not in our view constitute special circumstances. While there was a thin basis for the challenges he made to the findings of fact made by Commission, it puts it too high, as the Commission submits, that the application was misconceived and lacking in substance.
Not being satisfied that special circumstances are established, the power to make an order for costs cannot be exercised.

Correction under s 63 of the NCAT Act

The notice of decision issued to the parties on 14 February 2018 contains an "obvious error". Missing from Order 1, were the words "any counselling of any description and any other mental health services". The presiding member directed the Registrar to alter the text of that decision by inserting in Order 1 after the word, "providing" the words "any counselling of any description and any other mental health services".

Orders 1. The Respondent's decision made on 06 October 2016, made under the Health Care Complaints Act 1993 (NSW), to prohibit the applicant from providing any counselling of any description and any other mental health services after 6 March 2017, is varied. 2. In substitution for that part of the decision prohibiting the applicant from providing after 6 March 2017, any counselling of any description and any other mental health services until he satisfies the Respondent that he has successfully completed a Level 5 qualification in counselling (ie a Diploma of Counselling) from an accredited institution, the following decision is made. 3. Pursuant to s 41A(2) of the Health Care Complaints Act 1993 (NSW), the applicant is permanently prohibited from providing any "health service" in either a paid or voluntary capacity. Note: For the purpose of this order "health service" carries the meaning given by s 4 of the Health Care Complaints Act, and includes but is not limited to the following types of health services: mental health counselling, hypnotherapy, psychotherapy and providing medico-legal opinion or advice relating to personal injury or similar claims. 4. The request by Health Care Complaints Commission for costs is dismissed. 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: 12 March 2018

Civil and Administrative Decisions Act 2013(NSW)

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