Health Care Complaints Commission v DAC [2017] NSWCATOD 98 is of interest for its consideration of a doctor’s knowledge of drug use in a social setting by another doctor, in circumstances where there was not a mandatory reporting obligation. Other issues arose which are not addressed in this note.

At [58] the Tribunal said:

The practitioner notes that initially the complainant had alleged that the practitioner was duty-bound, pursuant to ss.140 and 141, to report Dr A, but such complaint did not proceed. Instead, the allegation was made as currently framed, namely that the conduct constituted unsatisfactory professional conduct or professional misconduct. Whilst the Tribunal does not know the motivation for altering the complaint, the Tribunal notes that s.141 requires a reporting where a registered health practitioner forms a reasonable belief that the other registered health practitioner has behaved in an untoward manner “in the course of practising the first health practitioner’s profession…”. In the present circumstances, events surrounding Complaint 2 do not necessarily relate to that concept, but rather from the acknowledged facts gleaned in circumstances not arising from “the course of practising…”

Notwithstanding the withdrawal of the allegation of failure to make a mandatory report, the Tribunal said at [62]:

The Tribunal is satisfied that the practitioner owed, as his primary duty, a duty to patient care. Knowing that Dr A was consuming illicit drugs as specified in the complaint, it was incumbent upon him to report Dr A.

In [67] the Tribunal concluded:

The Tribunal is satisfied that the practitioner was so overcome with his affection for Dr A that he subverted his responsibility to notify Dr A’s superiors when there was a clear risk that patients could be exposed to potential harm. The Tribunal considers such failure by the practitioner to so notify as egregious conduct especially since the practitioner was a mentor of Dr A.

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