Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75

Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75

Although the respondent's misconduct was reprehensible, including sexual activity with a vulnerable patient, inappropriate prescribing and poor record keeping, the Tribunal was not persuaded that cancellation was necessary. It accepted that the respondent had expressed remorse and contrition in relation to the findings, considered the misconduct out of character in light of references, assessed the risk of repetition as low, and concluded that public protection, deterrence and professional standards would be adequately served by a significant suspension, recorded findings, restrictive practice conditions, mentoring, ethics education and costs.

Jurisdiction
Australia
Judgment Date
10 June 2016
Procedural Posture
Medical Practitioner Disciplinary Proceedings / Second Stage Hearing to Determine Protective and Other Orders Following Findings of Unsatisfactory Professional Conduct and Professional Misconduct
Outcome
Registration suspended for 9 months with conditions to apply on expiration of suspension; costs ordered for the complainant.
Legal Topics
['professional Misconduct' 'unsatisfactory Professional Conduct' 'sexual Activity With Patient' 'inappropriate Prescribing' 'clinical Record Keeping' 'suspension of Medical Registration' 'practice Conditions' 'costs']
['health Practitioner Regulation' 'professional Discipline' 'administrative Law'] ['professional Misconduct' 'unsatisfactory Professional Conduct' 'sexual Activity With Patient' 'inappropriate Prescribing' 'clinical Record Keeping' 'suspension of Medical Registration' 'practice Conditions' 'costs']

Case Brief

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Procedural Posture

Medical Practitioner Disciplinary Proceedings / Second Stage Hearing to Determine Protective and Other Orders Following Findings of Unsatisfactory Professional Conduct and Professional Misconduct

Legal Issues

  1. 1 ['What protective orders should be made following findings of professional misconduct against the respondent medical practitioner.' "Whether the respondent's registration should be cancelled, suspended with conditions, or whether a reprimand and conditions would be sufficient." "What significance should be given to the respondent's denial of sexual activity despite the Tribunal's contrary finding, and to his asserted remorse, contrition and insight." 'Whether costs should be ordered in favour of the complainant.']

Ratio Decidendi

Although the respondent's misconduct was reprehensible, including sexual activity with a vulnerable patient, inappropriate prescribing and poor record keeping, the Tribunal was not persuaded that cancellation was necessary. It accepted that the respondent had expressed remorse and contrition in relation to the findings, considered the misconduct out of character in light of references, assessed the risk of repetition as low, and concluded that public protection, deterrence and professional standards would be adequately served by a significant suspension, recorded findings, restrictive practice conditions, mentoring, ethics education and costs.

Court Disposition

Registration suspended for 9 months with conditions to apply on expiration of suspension; costs ordered for the complainant.

Orders

  • ['The registration of Dr Giuliano Marino on the register of medical practitioners maintained by AHPRA in conjunction with the Medical Board of Australia is suspended under section 149C(1)(b) of the Health Practitioner Regulation National Law for a period of 9 months.' 'On the expiration of the suspension, the...