On 20 November 2020, by consent, I made orders appointing the Medical Council of New South Wales as the appropriate review body to review orders made by the Tribunal on 19 July 2020 under the Health Practitioner Regulation National Law (the National Law) about Dr Kenneth McCroary (the practitioner). These are the reasons for the orders made.
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Background
On 19 July 2020 the Tribunal published reasons for decision in disciplinary proceedings brought by the Health Care Complaints Commission (the HCCC) against the practitioner (see Health Care Complaints Commission v Dr McCroary [2019] NSWCATOD 115).
The Tribunal's decision recorded a finding that the practitioner was guilty of unsatisfactory professional conduct. The Tribunal ordered that the practitioner be reprimanded, and a condition was imposed on his registration relating to him being mentored. Order 3 of the Tribunal's orders provided, inter alia, as follows:
Dr McCroary's registration is subject to the following condition:
(a) To be mentored for at least 12 months and then as determined by the Council.
On 14 October 2020 the practitioner filed a general application in the Tribunal in which he sought an order that "the NSW Medical Council is the appropriate review body for the purpose of the orders made by the NSW Medical Tribunal dated 19 July 2020". I pause to note that the orders were not made by the now repealed Medical Tribunal of NSW but were made by this Tribunal.
On 21 October 2020 the Medical Council of New South Wales (the Council) wrote to the Registrar, Occupational Division of the Tribunal and enclosed a copy of the practitioner's application. The Council's senior legal officer, Ms B Andersons, referring to the Tribunal's orders of 19 July 2010 stated:
I note that when making those orders, the Tribunal did not appoint a review body. Therefore the Tribunal is the appropriate review body pursuant to s 163 (1) (c) of the National Law.
Ms Andersons noted that the Council consents to the order sought by the practitioner, and asked if the order could be made in chambers by the List Manager. However, the matter was listed in the Health List on 20 November 2020. On that occasion, Ms F Davis solicitor appeared for the practitioner. Ms Andersons appeared for the Council. The HCCC also supported the orders sought being made by consent.
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The legislation
Section 163 of the National Law sets out the body that is "the appropriate review body" to review orders made by a Council. If the order does not provide for review by the Council, by default the Tribunal is the appropriate review body. Section 163 provides as follows:
163 Appropriate review body [NSW]
(1) For the purposes of this Division, the appropriate review body is -
(a) if the order being reviewed provides that it may be reviewed by a Council, the Council; or
(a1) if the Tribunal List Manager decides, on application by the person the subject of the review or the Commission, that a Council is the appropriate review body, the Council; or
(b) if the Tribunal List Manager decides, on application by the person the subject of the review, that a National Board is the appropriate review body, the National Board; or
(c) otherwise, the Tribunal.
(2) An application for review by a person must be lodged with the Executive Officer of the Council for the health profession in which the person is or was registered.
(3) The Executive Officer must refer the application to the appropriate review body.
Section 163A provides for a right of review by a person. Section 163A provides as follows:
163A Right of review [NSW]
(1) A person may apply to the appropriate review body for a review of -
(a) a prohibition order made in relation to the person; or
(b) a relevant order made in relation to the person.
(2) A person may also apply to the appropriate review body for a review of an order made under this Division.
(3) An application for review of an order may not be made -
(a) while the terms of the order provide that an application for review may not be made; or
(b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending.
(4) In this section -
decision-making entity means the following -
(a) a Committee;
(b) a Performance Review Panel;
(b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f);
(c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal;
(d) the Tribunal or the Tribunal List Manager;
(e) the Supreme Court;
(f) a review body in New South Wales, when deciding a matter under section 127A.
relevant order, in relation to a person, means any of the following orders made by a decision-making entity -
(a) an order that the person's registration as a registered health practitioner or student is suspended; or
(b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or
(c) an order that conditions be imposed on the person's registration in a health profession.
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Principles relevant to nominating an appropriate review body
The cases in which, as List Manager, I have exercised power under s 163(1)(a1) have established some broad principles. First, it is relevant to consider whether the failure to nominate an appropriate review body was an accidental slip or error. Secondly, it is relevant to examine the nature of any conditions imposed by a Tribunal and the reasons for their imposition. In some cases, it may be that the Tribunal has determined the seriousness of the conduct leading to the imposition of the conditions requires any review should be conducted by a fully constituted Tribunal. Finally, consideration should be given to the capacity and/or expertise of the review body to review the conditions. Often a Council will have the capacity to hear and determine a review in a more timely cost effective manner than the Tribunal. Council members will have the relevant expertise to consider whether conditions should be removed, varied or extended depending on the circumstances of the practitioner.
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Consideration
A reading of the Tribunal's decision reveals that, although the HCCC agitated a complaint of professional misconduct, that complaint was not found established by the Tribunal. The Tribunal found at [81] the practitioner understood his behaviour breached professional boundaries and he had developed insight into his conduct.
It appears to me that the Tribunal intended in condition (a) of the conditions imposed on the practitioner's registration to provide that the mentoring condition should remain in place for "at least" 12 months and then be reviewed by the Council as the appropriate review body to determine whether the condition should continue or be discharged. I accept, however, that the order is not expressed in the language of that statute and could be interpreted as providing power to the Council to impose any further mentoring order it thought appropriate (i.e. as it determined) but not to discharge the order.
On reading the decision and the application I was satisfied that the appropriate review body is the Council. In reaching that decision I took the following factors into account:
1. An application could have been made to amend the order of 19 July 2019 under the slip rule (see s 63 of the Civil and Administrative Tribunal Act 2013 (NSW);
2. The Tribunal's reasons and orders read together clearly infer the Tribunal intended the Council to be the appropriate review body; and
3. The Council is the more appropriate review body. It is likely to be able to review the orders in a more timely and cost effect manner than the Tribunal.
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ORDERS
1. Pursuant to s 163(1) (a1) of the Health Practitioner Regulation National Board the appropriate review body to review the conditions imposed on the registration of Dr Kenneth McCroary by the Tribunal on 19 July 2019 is the Medical Council of New South Wales.
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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: 26 November 2020