Conditions Imposed on Reinstated Osteopath Registration

The claimant's registration as an osteopath was reinstated with conditions including supervised practice, consent forms, and restrictions on certain treatments.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ng v Health Care Complaints Commission (No. 2) [2018] NSWCATOD 126 Hearing dates: On the papers Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Occupational Division Before: [NAME], Principal Member [NAME], Senior Member [NAME], Senior Member G Alder, General Member Decision: [NAME]'s registration as an [NAME] is reinstated under s 163B(1) of the Health Practitioner Regulation National Law (NSW) subject to the following conditions which apply for a period of 12 months from the date of this decision or such longer period as determined by the Osteopathy Council (the Council): (1) [NAME] is not to engage in solo practice or work as a locum for a period of 12 months, or for any further period determined as appropriate by the Council. (2) [NAME] must provide to the Council the name and contact details of any practice in which he works. (3) [NAME] may only practise as an [NAME] under the supervision of a [NAME] who does not have conditions on his/her practice and is approved by the Council ("the Supervisor"). Supervision may be remote, that is, where the Supervisor is: (a) On site but not working in close proximity to [NAME]; or (b) Off site or working remotely from [NAME]. At all times the Supervisor must be accessible to [NAME] to provide advice either in person or by telephone. (4) [NAME] must provide the name and contact details of the proposed Supervisor to the Council for approval within four weeks of commencing work as an [NAME]. (5) [NAME] is to be responsible for all costs associated with the supervision arrangement. (6) [NAME] is to ensure: (a) The Supervisor is given a copy of the decisions in Health Care Complaints Commission v Ng [2015] NSWCATOD 85; Health Care Complaints Commission v Ng [2015] NSWCATOD 139; Ng v Health Care Complaints Commission [2018] NSWCATOD 105. (b) He meets with the Supervisor in person on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved. (c) Each meeting is to include (but is not limited to): an inspection of records kept in the course of his practice; a review of work progress over the previous month and the consent forms provided by patients (see below). (d) At each meeting, the Supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (e) The Supervisor forwards to the Council, on a monthly basis, a Supervision Report in a format prescribed or approved by the Council. (f) The Supervisor is authorised to inform the Council immediately if there is any concern in relation to [NAME]'s compliance with the supervision requirements, any other matters of concern, or if the supervisor relationship ceases. (7) Before commencing any new type of treatment, [NAME] must obtain written consent from the subject [NAME]. [NAME] must give to the [NAME] a consent form which details the type of treatment he proposes to provide. The signed consent form must be kept in the [NAME]'s file. (8) [NAME] must provide copies of the signed consent forms to the Supervisor on a weekly basis. (9) [NAME] must provide copies of the signed consent forms together with a [NAME] log setting out the [NAME]'s name, date and time of each procedure and the nature of the procedure to the Osteopathy Council within five business days of the end of each month. (10) [NAME] must not undertake any assessment or treatment of a female [NAME] that involves or is likely to involve the palpation of adductor magnus or the pelvic floor region. (11) [NAME] is to submit to an audit of his clinical practice of osteopathy, by a person nominated by the Council at a timeframe determined by the Council. (12) [NAME] is to be responsible for all costs associated with the audit. (13) Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply should [NAME]'s principal place of practice be elsewhere in Australia other than NSW, so that the appropriate review body in those circumstances is the relevant National Board. Catchwords: TRADES AND PROFESSION –– health practitioners — conditions on registration of reinstated practitioner under s 163 of the Health Practitioner Regulation National Law (NSW) Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Health Care Complaints Commission v Ng [2015] NSWCATOD 139 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Category: Consequential orders (other than Costs) Parties: [NAME] (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel:

[redacted] [NAME] (Respondent)

Solicitors: [redacted] Health Care Complaints Commission (Respondent) File Number(s): 17/234017

REASONS FOR

DECISION 1. In a decision handed down on 2 July 2018, we proposed conditions to be placed on [NAME]'s registration as an [NAME]: Ng v Health Care Complaints Commission [2018] NSWCATOD 105 ("the proposed conditions").

2. At our invitation both parties made written submissions. Each made suggested changes to the proposed conditions. Most of the proposed changes were of a technical nature. Most were agreed by the parties.

3. Having considered the submissions made by the parties we made a number of changes to the proposed conditions, the key changes being:

1. As agreed by the parties, proposed Condition 7 is amended so that the requirement that [NAME] obtain written consent from a [NAME] before commencing treatment, applies only to "new treatment".

2. As proposed by the Health Care Complaints Commission ("the Commission") and opposed by [NAME] is to submit to an audit of his clinical practice by a person nominated by the Osteopathy Council (new Condition 11). While, as [NAME] points out, his clinical skills were not in issue in the reinstatement proceedings, nonetheless we concluded that this condition would serve to address any record- keeping shortcomings and provide an additional level of oversight of his practice.

1. We reject the submission made by [NAME] that the scope of proposed Condition 9 (new Condition 10) is too broad and potentially extends to any assessment or treatment of the adductor magnus or the pelvic floor region. As the Commission points out, as formulated, this condition applies only to assessment or treatment "that involves or is likely to involve the palpation of adductor magnus or the pelvic floor region".

Decision The following conditions are imposed on [NAME]'s registration for a period of 12 months from the date of this decision or such longer period as determined by the Osteopathy Council ("the Council"): 1. [NAME] is not to engage in solo practice or work as a locum for a period of 12 months, or for any further period determined as appropriate by the Council. 2. [NAME] must provide to the Council the name and contact details of any practice in which he works. 3. [NAME] may only practise as an [NAME] under the supervision of a [NAME] who does not have conditions on his/her practice and is approved by the Council ("the Supervisor"). Supervision may be remote, that is, where the Supervisor is:

1. On site but not working in close proximity to [NAME]; or 2. Off site or working remotely from [NAME]. At all times the Supervisor must be accessible to [NAME] to provide advice either in person or by telephone. 1. [NAME] must provide the name and contact details of the proposed Supervisor to the Council for approval within four weeks of commencing work as an [NAME]. 2. [NAME] is to be responsible for all costs associated with the supervision arrangement. 3. [NAME] is to ensure:

1. The Supervisor is given a copy of the decisions in Health Care Complaints Commission v Ng [2015] NSWCATOD 85; Health Care Complaints Commission v Ng [2015] NSWCATOD 139; Ng v Health Care Complaints Commission [2018] NSWCATOD 105.

2. He meets with the Supervisor in person on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved.

3. Each meeting is to include (but is not limited to): an inspection of records kept in the course of his practice; a review of work progress over the previous month and the consent forms provided by patients (see below).

4. At each meeting, the Supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council.

5. The Supervisor forwards to the Council, on a monthly basis, a Supervision Report in a format prescribed or approved by the Council.

6. The Supervisor is authorised to inform the Council immediately if there is any concern in relation to [NAME]'s compliance with the supervision requirements, any other matters of concern, or if the supervisor relationship ceases.

1. Before commencing any new type of treatment, [NAME] must obtain written consent from the subject [NAME]. [NAME] must give to the [NAME] a consent form which details the type of treatment he proposes to provide. The signed consent form must be kept in the [NAME]'s file. 2. [NAME] must provide copies of the signed consent forms to the Supervisor on a weekly basis. 3. [NAME] must provide copies of the signed consent forms together with a [NAME] log setting out the [NAME]'s name, date and time of each procedure and the nature of the procedure to the Osteopathy Council within five business days of the end of each month. 4. [NAME] must not undertake any assessment or treatment of a female [NAME] that involves or is likely to involve the palpation of adductor magnus or the pelvic floor region. 5. [NAME] is to submit to an audit of his clinical practice of osteopathy, by a person nominated by the Council at a timeframe determined by the Council. 6. [NAME] is to be responsible for all costs associated with the audit.

7. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply should [NAME]'s principal place of practice be elsewhere in Australia other than NSW, so that the appropriate review body in those circumstances is the relevant National Board.

********** 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 [NAME] 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: 09 August 2018