Health Care Complaints Commission v Bours (No2) [2015] NSWCATOD 80

Health Care Complaints Commission v Bours (No2) [2015] NSWCATOD 80

Although the practitioner's conduct was serious and warranted strong denunciation, the Tribunal was sufficiently satisfied by evidence of improved clinical practices, compliance with conditions, and some insight to conclude that cancellation was not necessary to protect the public. However, the gravity of the misconduct, the need for general deterrence, protection of public confidence, unlawful dealings with restricted substances and harassment of an expert witness required a reprimand, one-year suspension, post-suspension prohibition on podiatric surgery for two years, critical compliance drug conditions for at least four years, and a costs order in favour of the HCCC.

Jurisdiction
Australia
Judgment Date
05 August 2015
Procedural Posture
Professional Disciplinary Complaint Concerning a Registered Podiatrist / Second Stage Hearing on Consequential Protective and Costs Orders After Findings of Unsatisfactory Professional Conduct and Professional Misconduct
Outcome
The practitioner was reprimanded, his registration as a podiatrist was suspended for one year, post-suspension conditions were imposed, critical compliance conditions were made concerning restricted drugs, he was ordered to pay the HCCC's costs, and non-publication and notification orders were made.
Legal Topics
['unsatisfactory Professional Conduct' 'professional Misconduct' 'suspension or Cancellation of Registration' 'protective Jurisdiction' 'insight and Contrition' 'breaches of Poisons and Therapeutic Goods Act 1966 (nsw)' 'harassment of Expert Witness' 'critical Compliance Conditions' 'general Deterrence' 'non Publication Order']
['administrative Law' 'health Practitioner Regulation' 'professional Discipline' 'costs'] ['unsatisfactory Professional Conduct' 'professional Misconduct' 'suspension or Cancellation of Registration' 'protective Jurisdiction' 'insight and Contrition' 'breaches of Poisons and Therapeutic Goods Act 1966 (nsw)' 'harassment of Expert Witness' 'critical Compliance Conditions' 'general Deterrence' 'non Publication Order']

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Procedural Posture

Professional Disciplinary Complaint Concerning a Registered Podiatrist / Second Stage Hearing on Consequential Protective and Costs Orders After Findings of Unsatisfactory Professional Conduct and Professional Misconduct

Legal Issues

  1. 1 ["Whether the practitioner's registration should be cancelled, suspended, or maintained subject to conditions after findings of unsatisfactory professional conduct and professional misconduct." "Whether the practitioner's asserted insight, contrition, rehabilitation and practice changes reduced the need for cancellation of registration." 'What protective conditions should be imposed concerning podiatric surgery and restricted substances.' "Whether the practitioner should pay the complainant's costs." 'Whether non-publication orders should protect the identity of patients and family members.']

Ratio Decidendi

Although the practitioner's conduct was serious and warranted strong denunciation, the Tribunal was sufficiently satisfied by evidence of improved clinical practices, compliance with conditions, and some insight to conclude that cancellation was not necessary to protect the public. However, the gravity of the misconduct, the need for general deterrence, protection of public confidence, unlawful dealings with restricted substances and harassment of an expert witness required a reprimand, one-year suspension, post-suspension prohibition on podiatric surgery for two years, critical compliance drug conditions for at least four years, and a costs order in favour of the HCCC.

Court Disposition

The practitioner was reprimanded, his registration as a podiatrist was suspended for one year, post-suspension conditions were imposed, critical compliance conditions were made concerning restricted drugs, he was ordered to pay the HCCC's costs, and non-publication and notification orders were made.

Orders

  • ["The Practitioner is reprimanded as a mark of the Tribunal's strong disapproval of the offending conduct." "Pursuant to s149C(a)(b) the Practitioner's registration as a podiatrist is suspended for a period of one year, commencing on 12 August 2015, with limited practice during the preceding week only for referrals...