Kaye v Health Care Complaints Commission (No 2) [2018] NSWCATOD 36

Kaye v Health Care Complaints Commission (No 2) [2018] NSWCATOD 36

The adjournment was refused because, despite the seriousness of the consequences for Mr Kaye and the limited prejudice to the Commission, the balance of justice favoured final determination: the parties had eight weeks' notice, counsel had previously been unavailable, Mr Kaye had written submissions prepared by counsel and could present his case, and public protection required no further delay. The original decision was varied because Mr Kaye had seriously breached the Code, misrepresented qualifications, provided health services he was not qualified to provide, lacked insight or remorse, and posed a real and material risk that the conduct would be repeated. The Tribunal was not satisfied...

Jurisdiction
Australia
Judgment Date
12 March 2018
Procedural Posture
Administrative Review of a Health Care Complaints Commission Decision Concerning an Unregistered Health Practitioner / Consequential Orders After Review; Adjournment Application and Costs Request Determined
Outcome
The Commission's decision was varied; Mr Kaye was permanently prohibited from providing any health service in a paid or voluntary capacity; the Commission's request for costs was dismissed.
Legal Topics
['prohibition Orders' 'unregistered Health Practitioners' 'code of Conduct for Unregistered Health Practitioners' 'adjournments' 'special Circumstances for Costs' 'public Protection']
['administrative Law' 'health Practitioner Regulation' 'practice and Procedure' 'costs'] ['prohibition Orders' 'unregistered Health Practitioners' 'code of Conduct for Unregistered Health Practitioners' 'adjournments' 'special Circumstances for Costs' 'public Protection']

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Procedural Posture

Administrative Review of a Health Care Complaints Commission Decision Concerning an Unregistered Health Practitioner / Consequential Orders After Review; Adjournment Application and Costs Request Determined

Legal Issues

  1. 1 ["Whether the hearing should be adjourned because the applicant's counsel was unavailable." 'Whether the original decision was the correct and preferable decision under s 63(1) of the Administrative Decisions Review Act 1997 (NSW).' 'Whether a prohibition order should be made under s 41A(2) of the Health Care Complaints Act 1993 (NSW), and if so in what form.' 'Whether the Health Care Complaints Commission should receive costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

The adjournment was refused because, despite the seriousness of the consequences for Mr Kaye and the limited prejudice to the Commission, the balance of justice favoured final determination: the parties had eight weeks' notice, counsel had previously been unavailable, Mr Kaye had written submissions prepared by counsel and could present his case, and public protection required no further delay. The original decision was varied because Mr Kaye had seriously breached the Code, misrepresented qualifications, provided health services he was not qualified to provide, lacked insight or remorse, and posed a real and material risk that the conduct would be repeated. The Tribunal was not satisfied...

Court Disposition

The Commission's decision was varied; Mr Kaye was permanently prohibited from providing any health service in a paid or voluntary capacity; the Commission's request for costs was dismissed.

Orders

  • ["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." 'In substitution for that part of the decision prohibiting the...